CITATION: R v. O.S.B., 2025 ONSC 2798

COURT FILE NO.: CR-24-73

DATE: 2025 06 05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

J. Vlacic and C. Tarjan, for the Crown

• and -

O.S.B.

L. Gensey, for Mr. B

HEARD: March 10-14, 18-20, 25, 27, April 1, 3, 2025

PUBLICATION BAN

The court issued an order, under section 486.4(2.2) of the Criminal Code, prohibiting any information that could identify the children of Mr. B and Ms. M, who are each a “victim” because they suffered emotional harm due to the commission of the offence, from being published in any document or broadcast or transmitted in any way. This version of the court’s Reasons for Judgment has been modified to comply with that order and is not subject to it.

REASONS FOR JUDGMENT

BALTMAN J.

Overview

1While there are many cases in the courts involving marital breakdown, only a few feature one spouse allegedly trying to shoot the other to death. This is one of them.

2The accused, Mr. B, faces five charges arising out of his relationship with his former spouse, Ms. M. Two of them are domestic assault charges that precede the shooting and occurred while the couple was still living together, namely:

Count 1: Assault (choking), March 2020: s. 267(c)

Count 2: Assault (choking), November/December 2021: s. 266

3The remaining three charges arise from a single incident that occurred well after the couple had separated and while they were in the midst of family law proceedings. On January 20, 2023, Ms. M was shot twice as she sat in the driver’s seat of her vehicle. Fortunately, she survived. The resultant charges are:

Count 3: Attempt Murder: s. 239(1)(b)

Count 4: Discharge of Firearm with intent: s. 244(1)

Count 5: Aggravated Assault: s. 268

4The identity of the shooter is the key issue at trial. The Crown says that when viewed cumulatively, the circumstantial evidence proves that Mr. B is guilty of attempt murder beyond a reasonable doubt. In support of this, the Crown relies on:

• Mr. B’s unusual absence from his employment on the day of the shooting;

• DNA found on the hat worn by the shooter, which was left at the scene and from which Mr. B could not be excluded as a donor;

• Mr. B’s admission to setting the couple’s matrimonial home on fire less than 24 hours after the shooting;

• Mr. B’s discontent with the status of the couple’s Family Law proceedings, in particular that their two children would not, as he had hoped, be living primarily with him.

• Various inculpatory remarks in Mr. B’s statement to police;

5The defence submits that the evidence, as a whole, falls short of establishing that the accused’s guilt is the only available inference to the charges of attempt murder, discharge of a firearm and aggravated assault. In respect of the charges of assault by choking, the defence argues that Ms. M’s evidence as to what occurred is unreliable and should be rejected.

Part 1: The Evidence

Ms. M as a witness

6Much of the pivotal evidence in this case came from Ms. M. I found her to be a highly credible and reliable witness. Her account of what occurred both during the relationship and in the shooting incident, was straightforward and unembellished. While she could not recall certain details of the relevant events, she was able to recount the essential narrative. She also, remarkably, shows little animus toward Mr. B, given the tumult arising from their relationship, and his admission to burning her house down while she was in the hospital recovering from her gunshot wounds.

Family and Background Information

7This evidence came primarily from Ms. M and was, except where I indicate otherwise, uncontested.

8Ms. M is 43 years old. She began a relationship with Mr. B in approximately 2005. They started living together in 2006 and married in 2007. The parties had two children together – a daughter, T, born in 2010 and a son, C, born in 2014.

9From approximately 2013 until 2021, the parties resided together with their children in a house at [### Redacted] Crescent in Shelburne, Ontario. Throughout her marriage Ms. M worked – initially as a warehouse manager, and then in June 2021 was promoted to office manager. Ms. M’s work was located in Mississauga, approximately one hour and 15 minutes from her home in Shelburne.

10Ms. M and Mr. B separated on December 7, 2021. Mr. B left the matrimonial home, and Ms. M and the children remained in the house on [Redacted] Crescent.

11Between 2021 and 2023, Ms. M’s work schedule included a mix of in-person and virtual work. She typically worked in the office from 10:00 a.m. to 2:00 p.m., and then worked from home for the remainder of the day in order to accommodate childcare. When the children were sick, there was some ability to work remotely for the day.

12Ms. M testified that Mr. B was familiar with her work schedule as it was the same schedule she kept while they were married, and around which they arranged childcare and daily life as a family. Ms. M agreed that her neighbour, L, would often help with after school care and that her sister-in-law (the children’s aunt) also helped on occasion with after school care or when C was ill.

13Both during and after the marriage, Mr. B worked as a shipper/receiver at [Redacted] works in Brampton. He worked the day shift from Monday to Friday, beginning at 7:00 a.m. His attendance at work during their marriage was consistent, with hardly any absence. The site manager who oversaw Mr. B for over 10 years testified that he was a reliable employee, who typically used only three or four of the five annual “sick days” allotted to employees.

14On Friday January 20, at 3:14 a.m., Mr. B texted his manager, advising “I will not be in today. Not doing feeling well. Mr. B.” His manager responded at 7:05 a.m.: “Kk.” Mr. B was also away from work on Thursday January 12. He sent a similar message and received the same response.

15Unfortunately, from birth, both children had sickle cell beta thalassemia, a genetic blood disorder that results in painful crises. C’s condition is the more severe of the two, and he had been suffering these pain crises since he was a toddler. During a pain crisis, he would often miss several days of school, where, according to Ms. M, she would typically either work from home or drop him off at her grandmother’s house at 19 [Redacted] Crescent in Brampton. Ms. M testified that when C had a pain crisis, the grandmother’s house was the “primary place” for him to go, and, before their separation, Mr. B “shared that practice,” i.e. he would also take C there. It was approximately a 20-minute drive from 19 [Redacted] Crescent to Ms. M’s workplace. Ms. M agreed that both L and Mr. B’s sister would also help on occasion when one of the kids was sick.

The March 2020 Incident (Count 1 - Assault)

16Ms. M testified that the couple was on the main floor of their home in Shelburne. The children were upstairs. Mr. B was mounting a TV and asked Ms. M for help. She refused because she was mad at him due to a recent disagreement. Mr. B then walked over to her and put both hands around her neck, repeatedly saying “do you know who I am.” His hands were on her neck for less than a minute, and the pressure applied was not enough to stop breathing. She did not try to pull his hands away, as she was frozen and in shock. This was the first time he had been physically aggressive toward her. He then disengaged and walked away, and resumed installing the TV.

17Ms. M went upstairs, locked herself in her bedroom and wept. The pressure from his hands left marks on her neck, which she photographed.

18Ms. M did not report this incident to the police until her statement of January 26^th, 2023, after she was released from hospital following the shooting.

The November/December 2021 Incident (Count 2 – Assault)

19Ms. M could not recall the exact date of this incident but testified that it occurred between November 28 and December 1, 2021. The couple were in their bedroom upstairs. Mr. B accused Ms. M of cheating and demanded she confess. She refused because, as she testified, she had not been unfaithful. Mr. B stated he had video evidence to prove the allegation, but when she asked to see it, he did not produce anything.

20When Ms. M did not confess to the alleged infidelity, Mr. B became angry, punched a wall and then grabbed Ms. M by the throat. Facing her, he put both hands around her throat, similar to the March 2020 incident, but with less pressure and for a shorter period of time (approximately 10-15 seconds). Again she froze, as she was in shock. He then removed his hands and walked out of the bedroom. This attack also left marks on her neck, but they were fainter than the March 2020 incident. Ms. M stopped sleeping in the marital bedroom after this incident.

21As with the March 2020 incident, Ms. M did not report this incident to the police until her statement to a female officer on January 26^th, 2023, following her release from the hospital after the shooting. She testified that was the first time she had the courage to raise either incident.

Separation and Legal Proceedings

22On December 7, 2021, police attended the residence due to another incident between the parties which does not form part of this case, but which triggered the separation. In the early morning hours of December 8, 2021, Ms. M, her mother and children left the Shelburne residence and went to 19 [Redacted] Crescent. They stayed there until December 12, 2021, when they returned to the Shelburne residence. Ms. M and the children would live at this residence until it was burned down by Mr. B on January 21, 2023.

23Following the separation of December 7, 2021, Mr. B moved out of the Shelbourne residence. In the months thereafter Mr. B did not settle into any new residence on an ongoing basis, and eventually lived primarily in his vehicle. The parties had no direct contact, and instead used third parties for communications regarding children and divorce. By January 2023, T (then 12 turning 13) had her own cellphone and was often the third party through whom the parents communicated.

24Ms. M was keen on mediation as a method of dispute resolution. With the involvement of a mediator, the parties attempted resolution via Zoom in late January 2022. However, negotiations quickly reached an impasse because Mr. B insisted on sole custody, whereas Ms. M proposed shared custody wherein the children would live primarily with her but there would be “open access” for Mr. B, with advance arrangements for holidays and visitation.

25Both parties retained counsel and a case conference was scheduled for February 24, 2023. Ms. M was notified of the date on January 10, 2023, through a calendar invite from her lawyer. Ms. M was forwarded an email on January 18 from her counsel to Mr. B’s counsel alerting them to the case conference date. The original email from her counsel to his counsel was sent January 17. Ms. M did not have personal knowledge of when Mr. B would have found out about the case conference.

Events Leading up to January 20, 2023

26At this point Ms. M was focussed on her children and her job. Her social life was limited and she was not dating anyone. She did not consume drugs or owe money to anyone. Other than Mr. B, no one had physically threatened her or was feuding with her.

27On Thursday, January 12, 2023, C started to suffer from a pain crisis. Ms. M received a call from the school that he was not well. She arranged for L, her neighbour, to pick him up from school. Ms. M then took C home and worked virtually for the remainder of the day.

28The following day (Friday, January 13, 2023), C was still unwell. Ms. M dropped him off at her grandmother’s house at 19 [Redacted] Crescent for the first half of the day. She then picked C up and worked from home in the afternoon.

29Over that weekend, C stayed home with Ms. M.

30On Monday January 16, 2023, Ms. M worked from home because she was preparing for a medical procedure scheduled for the next day. Both children stayed home with her, as T had a stomach ache and C’s pain crisis continued.

31On Tuesday, January 17, 2023, Ms. M went to her medical procedure, while her son stayed with his aunt (Mr. B’s sister).

32On Wednesday January 18 and Thursday January 19, 2023, C was still unwell, so Ms. M took him to 19 [Redacted] Crescent. She dropped him there sometime between 9:30 and 10:00 a.m., and then headed to work. She left work at 2 or 2:30 p.m. and picked C up. They returned to the Shelburne residence and Ms. M worked from home for the remainder of the day.

33Ms. M believed Mr. B was aware of C’s pain crisis that week, as she had looked through T’s phone and saw that T had texted Mr. B informing him. (Ms. M testified that for security reasons, she periodically checked T’s phone.) Ms. M also saw a text from Mr. B to T advising her to “keep Honey up to date re C’s status.” “Honey” was the family’s nickname for L.

Events of January 20, 2023: The Shooting

34On the morning of Friday, January 20, 2023, C was still unwell and unable to attend school. Ms. M was running slightly behind schedule, which was not unusual for her. She dropped T off at school in Shelburne and then drove directly to 19 [Redacted] Crescent to drop off C. She was driving her personal vehicle (a silver Mazda SUV) which she had purchased in March 2022 and was typically parked at her residence, usually in the garage but occasionally on the driveway. It was also one of the property items she listed in her separation proposal of August 2022.

35She arrived at 19 [Redacted] Crescent at approximately 9:30-10 a.m. She parked in the driveway and helped C inside. Before she went inside she locked her car and took her cell phone with her. She called out to her grandmother, who was in the kitchen, and then quickly left, as she was running late.

36She returned to her car, unlocked it, got into the driver’s seat, and closed the door. At that point she saw nothing out of the ordinary. However, as she was setting up her phone on the dashboard, she heard a popping sound. She looked up and saw a person standing by the driver’s side window, close to the driver’s side mirror. She initially thought she was being robbed, and looked back over her left shoulder to see if there were any accomplices. She then noticed a blue sedan parked on the street, facing the “wrong direction,” which had not been there when she arrived.

37At that point her first instinct was to lock the car door, which she did. She then heard a second pop, and felt pain in her right hand. Desperate now to get help, she pressed her left hand on the horn, hoping to draw attention.

38The shooter did not say anything, point to anything, or try to open the car door. She did not see their hands or anything they might have been holding. She was, however, able to make out some features of the shooter. The person was wearing a dark hooded sweatshirt with the hood up and a white mask covering their entire face except for the eye area. They had dark brown eyes and dark skin around the eyes. Although she could not recognize the shooter, the person’s build and height reminded her of Mr. B.

39After she pressed the horn, the shooter quickly moved away. Ms. M saw the shooter get into the driver’s side of the blue sedan and drive off. The vehicle had tinted windows and chrome accents. It was not the Hyundai Elantra she usually saw Mr. B drive.

40Ms. M then ran to the front door of her grandmother’s house, got inside and called 911. She was taken to the hospital, where she remained for 4-5 days. She sustained injuries to her right hand, chest and upper right arm. One of the bullets shattered the bone in her right hand, requiring reconstructive surgery to remove bone fragments and insert a metal stent for support. She also needed stitches for chest and arm wounds. She remained in hospital for 4-5 days and was unable to use her right hand for about 2 months thereafter.

Forensic Examination of the Scene

41Ms. M’s 911 call was made at approximately 9:45 a.m. Police responded quickly and physically arrived at 19 [Redacted] Crescent at 9:47 a.m. They promptly secured the scene and set up outer and inner perimeters. They noted a baseball hat sitting on the driveway of 17 [Redacted] Crescent but avoided touching or moving it in any fashion.

42Detective Constable Opresnik with Peel Regional Police forensics attended the scene along with Forensic Identification Officer Hutchison. Together they went carefully through the scene to identify, document and collect relevant evidence, and later to photograph and submit the collected exhibits for analysis. Both officers wore masks and nitrile gloves to avoid contamination of any evidence. They were told about the hat and about a cartridge case that had been found.

43Opresnik picked up the hat by the brim to avoid contaminating the headband area, which is crucial for DNA analysis. He placed the hat into its own individual paper bag, which was sealed and then placed into a larger transportation bag.

Forensic Examination of the Hat

44Diana Polley from the Centre of Forensic Sciences testified as an expert in identification of bodily fluids and DNA. She confirmed that a sample of DNA suitable for testing was retrieved from the hat. The sample was a mixture of three people – at least one male and one female. The result was that Mr. B cannot be excluded as a contributor to the mixture of DNA found on the hat. The likelihood ratio was 1 in 1700, i.e. the results generated are estimated to be greater than 1700 times more likely if the DNA in the mixture originates from Mr. B and two unknown people than if it originates from three unknown people, unrelated to Mr. B.

Surveillance Evidence

45The Crown asserts that this was a targeted shooting against Ms. M. It maintains that the shooter was driving around the vicinity of 19 [Redacted] Crescent waiting for her to arrive on the morning of January 20, 2023. It relies primarily on the evidence of Officer Chen, who was the surveillance canvass coordinator.

46The various officers working on the case recovered surveillance videos from residences in the area. They were looking for video of the suspect and the suspect’s vehicle. Once all the surveillance was gathered, Officer Chen reviewed it all and prepared a 93-page timeline, consisting of various videos and still photographs.

47Importantly, much of the shooting itself was captured on videos from two nearby houses on [Redacted] Crescent (#28 and #15). In particular, they capture:

a) the shooter running back to the vehicle that Ms. M saw parked on the street during the shooting incident, getting into the vehicle and driving off, and

b) the shooter dropping a white hat off his head as he runs back towards the getaway vehicle.

48I will have more to say about the hat later. As for the vehicle in which the shooter escaped, Officer Chen honed in on that vehicle – the “suspect vehicle” – in order to track its movements before and after the shooting. He determined the vehicle was a black Chevrolet Cruz, and noted several distinguishing features of the car, including tinted windows, chrome trim surrounding the windows, a distinct dark creamy colour around the rims and tires, and a “fin” shaped antennae at the back of the vehicle. Significantly, both license plates (on the front and the back of the car) were missing or obscured. Due to the strong tint on the windows he could not identify anyone inside the car.

49The upshot of the extensive surveillance he reviewed and the lengthy report he prepared demonstrates that the suspect vehicle appeared on [Redacted] Crescent¹ three times between 9:20 a.m. and 9:40 a.m. In particular, the following path of travel was captured on camera:

a) 9:20 a.m.: suspect vehicle travels southbound on [Redacted] Cres., curves eastbound on [Redacted] Cres. towards [Redacted] Dr., then turns left heading northbound on [Redacted] Dr.;

b) 9:20 – 9:25 a.m.: suspect vehicle travels northbound on [Redacted];

c) 9:28 - 9:29 a.m.: suspect vehicle travels eastbound on [Redacted] Ave., turns around in [Redacted] Ct., and travels back westbound on [Redacted] Ave.;

d) 9:29 a.m.: suspect vehicle travels northbound on [Redacted] towards [Redacted] Ave (presumably after having turned right from [Redacted] to head north on [Redacted] Dr.);

e) 9:38 a.m. – 9:40 a.m.: Ms. M’s vehicle turns westbound onto [Redacted] Crescent from southbound [Redacted] Dr. A minute later the suspect vehicle turns northbound onto [Redacted] Dr. from eastbound [Redacted] Crescent (for the third time). The suspect vehicle then makes a U-turn and proceeds southbound on [Redacted]., turning westbound onto [Redacted] Cres.;

f) 9:39 a.m.: Ms. M’s vehicle pulls into the driveway of 19 [Redacted] Cres.;

g) 9:40:09: Ms. M accompanies C into residence;

h) 9:40:35: Ms. M returns to her vehicle alone and enters driver’s seat;

i) 9:40:58: Suspect vehicle stops at curb outside 17 [Redacted] Cres. and shooter exits drivers side door, leaving door open;

j) 9:41:04: Suspect walks towards driver’s side of Ms. M’s vehicle;

k) 9:41:05: Suspect arrives alongside Ms. M’s vehicle;

l) 9:41:08 – 9:41:10: Two shots heard in video;

m) 9:41:15: Suspect runs back to suspect vehicle;

n) 9:41:15: Suspect travels westbound on [Redacted] Cres. and turns northbound onto [Redacted] Dr.

50In sum, the video demonstrates that the suspect vehicle appeared on [Redacted] Crescent three times between 9:20 a.m. and 9:40 a.m. The significance of this is discussed below.

Destruction by arson of the family home: January 21, 2023

51At 2:00 a.m. on January 21, 2023 - less than 24 hours after the shooting -Mr. B set Ms. M’s house on fire. This was the residence on [Redacted] Cres. where the family had lived together before the separation and where Ms. M and the children remained. Mr. B knew no one was in the residence when he set the fire; Ms. M was in hospital being treated for her gunshot wounds, and the children were staying elsewhere, with relatives.

52While the home was ablaze Mr. B jumped out of a second-floor window, seriously injuring himself. Later that day he checked into hospital with a broken leg. The staff recognized him from a news broadcast and contacted Guelph police.

53Mr. B ultimately pleaded guilty to the offences of arson, break and enter, and breach of a recognizance, all related to the January 21, 2023 incident. Following an application heard early in the trial, I ruled this evidence admissible as other discreditable conduct.

Part 2: Legal Framework

Standard and burden of proof

54Mr. B is presumed innocent of the charges he faces. The burden of proof is on the Crown. The Crown must prove beyond a reasonable doubt that Mr. B is guilty of the offences charged. There is no onus on Mr. B to prove anything. He is not required to testify or to call evidence, and in this case chose not to do either. That cannot be used against him.

55The standard of proof beyond a reasonable doubt is an exacting one. It is more than probably or likely guilty. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainties than it does to proof on a balance of probabilities. I may find Mr. B guilty only if I am sure that he committed the offences alleged.

Assessing Circumstantial Evidence

56The evidence in this case is circumstantial. When assessing circumstantial evidence, consideration must be given to other reasonable possibilities or plausible theories that are inconsistent with guilt. While the Crown must negate other reasonable possibilities, it is not required to negate every possible conjecture, no matter how irrational or fanciful, consistent with innocence. The basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than guilt. If it is, the accused must be acquitted: R. v. Villaroman, 2016 SCC 33, at paras. 26-30, 37-38; R. v. Charron, 2022 ONCA 394, at para. 19.

Evidence of Motive

57The Crown is not required to prove motive. Motive is not an essential element for an offence. However, evidence of motive is relevant, material and admissible, especially when the Crown’s case is circumstantial. Specifically, it may help in establishing the identity of the person who committed the offence. Motive points to future conduct. We infer from prior motive subsequent conduct: R. v. Jaggernauth, 2023 ONSC 3539, at para. 30; R. v. McDonald, 2017 ONCA 568, at paras. 70-73; R. v. Singh, 2022 ONCA 584, at para. 101.

The elements of assault

58The offence of assault is set out in s. 265 of the Criminal Code. The actus reus, for the purposes of this case, is the application of force to another person without their consent.

59The mens rea, or mental element of the offence, requires that the Crown prove such force was applied intentionally.

The elements of discharging a firearm with intent and aggravated assault

60The elements of counts 4 (discharging a firearm with intent) and 5 (aggravated assault) are set out in ss. 244(1) and 268(1), respectively, of the Code. While the actus reus of the two offences is different (one involves discharging a firearm at another person and the other requires the application of intentional force that endangers the victim’s life), the mens rea is the same, reflected in common verbiage regarding the intent or effect of “wounding, maiming or disfiguring.” To “wound” means to injure someone in a way that breaks or cuts or pierces the skin or some part of the person’s body. It must be greater than some trifling injury, such as a scratch. To “maim” means to cause a person to lose the use of some part of their body or bodily function. The loss need not be permanent. To “disfigure” means something more than a temporary marring of the figure or appearance of a person: R. v. Brown, 2021 ONCA 678, at paras. 23-25.

The elements of attempted murder

61This offence is set out in s. 239(1) of the Code. The Crown must prove beyond a reasonable doubt that Mr. B intended to kill Ms. M and that he acted or conducted himself for the purpose of carrying out that intention.

62The actus reus, or conduct requirement, must go beyond mere acts of preparation. The mens rea or mental element of the offence requires that the Crown prove the specific intent to kill. The intention to inflict harm, combined with recklessness as to the consequences, does not suffice: The Queen v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225, at pp. 250-251. Intention to kill includes a decision to carry out some purpose knowing that the killing is virtually certain, even if the killing is not the ultimate purpose: R. v. Boone, 2019 ONCA 652, at para. 52.

63R. v. Ryan, 2008 ONCJ 350, illustrates the evidence a trier may consider in determining what can be inferred. At para. 47:

Accordingly, absent a direct expression of intention, the mental element of attempted murder – namely: the intention to kill – may be inferred from the totality of the facts, including the nature of the weapon, the extent of its use, the manner in which it is used on the victim, the area of the victim’s body that is attacked, the results of the attack and any other surrounding circumstances that may form strands in the process of inference leading to a conclusion on the question of intention.

64As I explain below, several of those factors are relevant to this case.

Part 3: Analysis

A. Did Mr. B assault Ms. M in March 2020? (Count 1)

65I find Ms. M gave clear and convincing evidence about this incident. She made no attempt to exaggerate by suggesting that she was choked to unconsciousness or severely battered. While the photographs she took show only mild redness around her neck, that is consistent with her evidence that Mr. B did not apply severe pressure or cut off her breathing. That she didn’t try to pull his hands off her neck is also understandable; as she testified, she was “in shock, immobile.”

66I do not agree with the defence that Ms. M’s delay in reporting this incident undermines her account of what happened. It was apparent from her evidence that she wanted to shield her children as much as possible from any conflicts between her and Mr. B. It was only after she was shot and her house was burned down that it was clear she had no reason to hold back any longer. As she testified, that’s when she finally had the “courage” to bring it up.

B. Did Mr. B assault Ms. M in November 2021? (Count 2)

67I accept Ms. M’s evidence regarding this assault as well. I disagree with defence that her evidence regarding this incident was “vague” or “lacking in meaningful detail.” She recounted many details that made it clear this was a second, subsequent incident, occurring in a different room (their bedroom) and in a somewhat different manner than the first. Unlike the first, it was triggered by Mr. B’s (unsubstantiated) belief that Ms. M was cheating on him. When she denied it, he punched the wall, accused her of lying and declared he had video proof. When Ms. M demanded that he show it to her, he refused. His mood was so intimidating that after it was over she stopped sleeping in their bedroom.

68Finally, as with the earlier assault, and for the same reasons, I find any delay in Ms. M’s reporting of this event to the police to be insignificant.

C. Did Mr. B shoot and try to kill Ms. M on January 20^th, 2023? (Counts 3, 4 and 5)

69The key issue at this trial is the identity of the person who shot Ms. M. A secondary issue is intent, as the defence maintains that even if Mr. B is identified as the shooter, the evidence does not establish that he was attempting to murder Ms. M.

70For the following reasons, I conclude that the only reasonable inference from all the evidence is that Mr. B was the shooter and that he intended to kill Ms. M. I arrive at that conclusion for four reasons, which I shall analyze in turn:

1. Mr. B had a strong motive to kill Ms. M;

2. Mr. B had the opportunity to kill Ms. M;

3. Mr. B cannot be excluded as a donor to the DNA found on the baseball cap left at the scene by the shooter;

4. Mr. B intended to kill Ms. M.

5. Mr. B had a strong motive to kill Ms. M

71It is apparent from the evidence that Mr. B had numerous grievances against Ms. M. The first concerned their living arrangements. Since the separation in December 2021, Mr. B no longer had access to the Shelbourne residence, and had been reduced to living – and sleeping - primarily in his vehicle. It is clear from his statement to Sgt. Smith that he blamed Ms. M for his exclusion from the family home, wherein he declared that she was willing to “crucify” him and had left him “out on the street like a fucking dog” (at p. 172).

72He also harbored a persistent, albeit false, belief that Ms. M had been unfaithful to him. That was the genesis of the couple’s argument in November of 2021, when Mr. B pressed her to confess her infidelities, claiming that he had videos. A similar theme permeated his statement to Sgt. Smith, wherein he stated he has “seen videos” and “asked questions,” to no avail (at p. 102).

73Later he declared he was suspicious of her lifestyle in general. He’d seen “guys showing up at the house” (at p. 173) and Ms. M with “large sums of cash” (at p. 175). He was “upset with Ms. M not being straightforward and trying to admit certain things and me trying to dig and trying to uncover it’s just too much” (at p. 164). He was mistrustful of her: “I wanna know what kind of lifestyle she’s in. What she’s doing, what led up to this…” (at p. 275).

74For Mr. B, the most galling aspect of Ms. M’s perceived betrayal was that in the 13 months following their separation Ms. M had acquired de facto primary custody of the children. Mr. B wanted sole custody of the children. Although Ms. M had proposed, in the family court proceeding, a shared custody arrangement, Mr. B insisted on sole custody. He acknowledged this to the court on March 28, 2023, when he pleaded guilty to the arson related charges: “I wanted sole custody of the kids and she could have the house.” He asserted that again to Sgt. Smith, stating “she doesn’t know how to take care of my kids and I told her, hey. Let me, let me take care of my kids” (at p. 71), and “I’ll give her the fucking house, just make sure I get my kids” (at p. 96).

75Mr. B felt excluded from his children’s lives. He complained that Ms. M didn’t keep him informed of how his son was doing (at pp. 72, 111). He was also suspicious of what she was up to: “Who else it at the house that’s taking up her time that you’re not being looked after?” (at p. 92). And he didn’t believe that this perceived injustice would be remedied through the family court proceeding: “And that’s part of the problem too, right, because I don’t know why the courts would be like, oh, the mother should have the kids because she’s the mother.” Ultimately, even though he thought the children should be connected to both their parents, he believed “it’s best if [they] reside with me” (p. 293).

76Moreover, the family law proceedings were heating up. A Case Conference was scheduled for February 24, 2023, just weeks away. That created the prospect of the court weighing in on the parenting arrangements, at least temporarily.

77Defence counsel asserted there was no definitive evidence that Mr. B knew that the Case Conference was upcoming. She suggested Mr. B’s counsel may have been unaware of it or failed to notify him. She noted that in his statement to Sgt. Smith, Mr. B indicated that he last “talked” to his lawyer a month or two earlier (at p. 236).

78I find it reasonable to infer that Mr. B knew about the upcoming Case Conference. His lawyer had been notified of it on January 17, in writing. The shooting occurred on January 20^th, three days after Mr. B’s lawyer was notified of the Case Conference. Even if he and Mr. B had not actually spoken in a month or two, the lawyer was obligated to promptly inform Mr. B of significant dates, which would certainly include a Case Conference before a judge. Given that communications are now frequently done electronically, Mr. B was likely notified of this very quickly and certainly well before the shooting.

79That said, even without specific knowledge of the upcoming Case Conference, it is clear Mr. B already knew the family law proceedings were gridlocked. As he told Sgt. Smith: a) the parenting issues were at an impasse (“It’s just back and forth”, at p. 96); b) his position was he wanted the kids; and c) he believed the court would side with the mother (at p. 72).

80And far from these frustrations diminishing over time, they appeared to escalate, to the point where on January 21, 2023 – less than 24 hrs after the shooting - he burned the matrimonial home on [Redacted] Cres. to the ground. As he described it to Sgt. Smith, he remembered getting out of the car when he arrived at the house and thinking “fuck it”…“Fuck this, like I’ve given you [Ms. M] every opportunity to be decent about the situation.” The fire that ensued was an expression of sheer hostility toward Ms. M that had been smoldering for well over a year.

81In sum, Mr. B had a powerful and persistent motive to kill Ms. M. She had betrayed him. She put him out on the streets like a “fucking dog.” She was living in the house and he was stuck in his car. And most importantly, his children would fare better living with him.

2. Mr. B had the opportunity to kill Ms. M

a) Mr. B was away from his phone

82As noted above, Mr. B absented himself from work on Friday, January 20, 2023. At 3:14 a.m. he texted his manager that he was unable to work that day, and his manager testified that he in fact did not attend work on January 20^th.

83But after that text message to his manager at 3:14 a.m., Mr. B refrained from using his phone. His phone records indicate he received 19 phone calls during January 20^th, 2023, all of which were unanswered and forwarded to voicemail (Ex. 20, p. 76). Cellular tower records sourced from the SMS messages linked to Mr. B’s phone number indicate that his phone communicated solely with a tower in Shelbourne, Ontario.

84The reasonable inference is that Mr. B was not answering his phone while off work on January 20, 2023, because he was not alongside his phone after 3:14 a.m. He admitted as much to Sgt. Smith, despite it serving as his primary number and daily alarm.

85The defence submits this evidence is in fact exculpatory, as it suggests that at the time of the shooting Mr. B’s phone was in Shelburne, nowhere near the area of Brampton where the shooting occurred. The Crown maintains that Mr. B deliberately left his phone behind in order to ensure his location was not tracked, as he departed to Mississauga to shoot Ms. M.

86Given the competing inferences, both of which are plausible, I give that evidence little weight on the issue of Mr. B’s opportunity to kill Ms. M. However, other evidence also demonstrates that Mr. B knew Ms. M’s hours of work; knew she had a sick child that week; and knew she would likely leave that sick child at 19 [Redacted] Crescent on her way to work. Moreover, the suspect vehicle was seen repeatedly passing by 19 [Redacted] Crescent on the morning of the shooting. As I will next explain, those factors are highly pertinent.

b) Mr. B knew Ms. M’s hours of work

87Ms. M’s unchallenged evidence was that Mr. B was familiar with her work schedule, both during their marriage and after they separated. In particular, he knew that she typically worked in the Mississauga office from 10:00 a.m. to 2:00 p.m. and then worked from home for the remainder of the day in order to accommodate childcare.

c) Mr. B knew that C was sick in the week leading up to January 20, 2023

88Three factors support this contention. First, Ms. M testified that she saw a text message from T informing Mr. B that C was sick. Second, Mr. B’s responding text asked T to keep “Honey” updated on C’s status. Third, in his police statement Mr. B himself averts to the fact that C had been sick “all month”… “all week.” When Sgt. Smith clarifies by asking “So the week prior to that and the week of?”, Mr. B responds “Right” (at p. 298).

d) Mr. B knew that Ms. M would likely leave C at 19 [Redacted] Crescent between 9:30 and 9:45 a.m. on January 20, 2023

89There are several reasons why it is highly likely that Mr. B knew that Ms. M would be at 19 [Redacted] Crescent on Friday, January 20, 2023, by 9:30 a.m. or shortly thereafter.

90First, as I’ve explained above, Mr. B knew that C was sick that week.

91Second, he knew that [Redacted] Cres. was the likely destination for Ms. M because during their marriage that was where his son went when he was sick. Ms. M testified that it was “routine” for the couple, while married, to drop the children off at 19 [Redacted] Cres. when sick. This approach made particular sense on a workday, because [Redacted] Cres. was relatively en route to both her workplace in Mississauga and Mr. B’s workplace in Brampton.

92Third, [Redacted] Crescent had long been a place of refuge for Ms. M. It was where she went with the children in December 2021, when the marriage imploded. And unlike her Shelburne neighbour L, who was employed, her grandmother did not work outside the house and was therefore available during the day.

93Fourth, he knew that Ms. M generally arrived at her workplace in Mississauga for 10:00 a.m., which would require her to drop C at 19 [Redacted] Cres. by approximately 9:30.

94In sum, while 19 [Redacted] Cres. was not the exclusive location for C when he was sick on a weekday, it was the probable one.

e) The suspect vehicle passed by 19 [Redacted] Cres. at least three times before the shooting

95As set out in para. 49 above, the suspect vehicle – in which the shooter escaped - appeared on [Redacted] Crescent three times between 9:20 a.m. and 9:40 a.m. This indicates the driver was not aimlessly wandering around the neighborhood streets, but rather returned repeatedly to [Redacted] Crescent. I agree with the Crown; one can reasonably infer that was because the driver was awaiting the expected arrival of Ms. M at 19 [Redacted] Cres. As she was running late that morning, the shooter remained in the neighbourhood and kept circling the block, thrice over.

96As the Crown aptly stated in its submissions, only someone who knew Ms. M’s hours of work, knew that she had a sick child that week, and knew that she would as a matter of routine drop that sick child off at 19 [Redacted] Cres., would know enough to lay in wait starting at 9:20 a.m. The person who knew all those things was Mr. B.

3. The DNA evidence implicates Mr. B

97Given the brief nature of this encounter, and the fact that the shooter was wearing a mask that covered their face (other than the eye area), the Crown has rightly conceded that Ms. M was not able to reliably identify the shooter.

98However, the DNA evidence in this case clearly implicates Mr. B. The videos from 28 [Redacted] Cres. and 15 [Redacted] Cres. capture the shooting and the subsequent flight of the shooter. The latter clearly shows the shooter dropping a white hat off his head as he runs back towards the getaway vehicle. Twenty seconds after the hat is dropped, Ms. Eduarda Cabral, who resides at 17 [Redacted] Crescent, exited her home in response to the gunshot sound and saw the hat in her driveway. She had never seen that hat before. She had been out on her driveway shortly after 8:00 a.m. that morning and did not see any hat there then. She did not touch the hat and confirmed, after viewing the police photos, that they accurately reflected where the hat was on her driveway and how it was positioned when she observed it.

99The hat was discovered by Peel police upon their arrival on the scene shortly after 9:47 a.m. As noted above, Mr. B cannot be excluded as a contributor to the mixture of DNA found on the hat, with a likelihood ratio of 1 in 1,700. In other words, it was 1700 times more likely than not that the mixture of DNA found on the hat originated from Mr. B and two unknown people than if it originated from three unknown people unrelated to him.

100I recognize that in her evidence, Ms. Polley stated that the results provide “moderate” rather than “strong” scientific support that Mr. B’s DNA profile fits into the mixture recovered. But that must be assessed in context. She described “strong” support as greater than a trillion times more likely that the DNA originated from the donor. And she testified that the likelihood of there being a “coincidental” match between the DNA sample and Mr. B is one in 1700. In other words, the probability of the DNA mixture not resulting from Mr. B and two other individuals is one in 1700. This may not be conclusive, but it is highly compelling.

101Defence counsel asserts that the manner in which the exhibits – particularly the hat - were handled and transported poses a “significant” risk of contamination at multiple points during the process, including a risk of inadvertent transfer of DNA amongst the items. There is no realistic foundation to that assertion. The evidence demonstrates that Opresnik exercised caution while handling the hat, to touch it as little as possible, and handled the brim with his gloved fingertips to limit any risk of contamination. Throughout the investigation the hat was kept in a separate, sealed evidence bag. I am satisfied that the hat was handled, stored and transported in a manner that prevented contamination and preserved its evidentiary value.

4. The Only Reasonable Inference is that Mr. B shot and intended to kill Ms. M

102Defence counsel argues that even if the Crown has proven that Mr. B shot Ms. M on January 20, 2023, he must nonetheless be acquitted of the offence of attempted murder, as the Crown has failed to establish beyond a reasonable doubt that he intended to murder Ms. M. In particular, counsel notes that only two shots were fired, and neither of them struck a vital organ.

103Where the shots land or how skilled the shooter is does not determine intent: R. v. Innocent, 2012 ONCA 659; R. v. Kawal, 2018 ONSC 7531. Nor is the number of shots taken illustrative of intent, particularly since immediately after the second shot, Ms. M leaned on her horn, which, from the shooter’s perspective, would likely bring unwelcome attention should he remain. What is relevant is that Mr. B shot at close range and aimed towards the upper body of Ms. M. His view might have been partially obstructed by the glass in the passenger window, and his aim may have been imprecise given the winter jacket Ms. M was wearing. But he was aiming close enough to vital organs that Ms. M’s life was definitely in peril. It is sheer luck that she survived.

104Defence counsel pointed to other seemingly exculpatory evidence, in particular that the shooter was operating a Chevrolet Cruz, a far cry from Mr. B’s registered Hyundai Elantra which he had operated as recently as the morning of January 20, 2023. But it would be perverse that a shooter who is fully concealing his identity with a mask and operating a vehicle with heavily tinted windows would then betray that identity by operating their own registered vehicle. Moreover, while the Crown cannot directly put Mr. B behind the wheel of a Chevrolet Cruz, the contents of his own vehicle are curious. Scribbled on several pieces of paper within his vehicle were 16 license plate numbers – half of which were Chevrolet Cruz vehicles.

105Finally, the defence submits the court “cannot discount the possibility” that the shooting was the result of a carjacking or robbery. Indeed, that is what Ms. M initially suspected when confronted with the shooter. But there are several problems with this hypothesis.

106First, the person who approached Ms. M did not make demands for anything, did not point towards anything, and did not say anything. Second, the shooter did not ultimately take the car or anything from within the car. Third, the time between the shooter’s arrival to the side of Ms. M’s vehicle and the first shot ringing out is less than three seconds (see para. 49), not enough time to even make a demand for the vehicle, let alone to grow so frustrated as to have to discharge a firearm. Fourth, according to the Agreed Statement of Facts, regional statistics from 2020 to 2025 indicate that very few carjackings result in the discharge of a firearm. Finally, the shooter ran to and from the driver’s seat of the Chevrolet Cruz. If successful, the carjacker would arguably have to leave their own car behind.

107For all those reasons, the evidence does not support that this was a carjacking or a robbery gone wrong, but rather a focused assassination attempt.

108Ultimately circumstantial evidence and reasonable inferences are about the unlikelihood of a cascading set of coincidences. The odds that someone other than Mr. B, on a day when Mr. B happened to be unusually absent from work, concealed their identity, procured the use of a Chevrolet Cruz, sought out and shot Mr. B’s ex-wife, wearing a piece of clothing with a DNA mixture from which Mr. B cannot be excluded, just hours before Mr. B burned down his ex-wife’s house is extraordinarily unlikely. The only reasonable inference from all the evidence is that Mr. B shot and intended to kill Ms. M.

D. Conclusion

109I conclude that Mr. B is guilty on all five counts in the indictment.

Baltman J.

Released: June 5, 2025

CITATION: R v. O.S.B., 2025 ONSC 2798

Footnotes

1. 1[Redacted] Crescent, as the name suggests, is a crescent shaped street that runs roughly east-west at the top, north-south in the middle, and west-east at the bottom. The residence at #19 is on the upper rung of the crescent, on the south side of the street.