Trial Decision
Court File No.: 23-Y1140207-A
Date: 2025-06-02
Ontario Superior Court of Justice
Between:
His Majesty the King
– and –
O.W.
Counsel:
Malcolm Savage and Victoria Di Iorio, for the Crown
Richard Addelman and Samantha Robinson, for the Defendant
Heard: April 10-30, 2025
Trial Decision by: Catherine McVey
Introduction
[1] O.W. is charged with first-degree murder and attempt murder, contrary to sections 235(1) and 239(1) of the Criminal Code. At the time of the alleged offences, O.W. was a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1. The Crown alleges that O.W., along with another youth, J.A., with the assistance of two adult accomplices, Noel Perez and Hantel Hersi, followed through on a premeditated plan to shoot and kill the deceased in the early morning hours of December 6, 2021. The shooting occurred at approximately 3:14am.
The deceased was shot in the face and torso repeatedly at close range. He died before paramedics arrived. He was sixteen years old.
[2] Another young person, X.R., who was sleeping in the same room as the deceased, was shot multiple times as well but fortunately survived.
[3] J.A. has already pleaded guilty to first-degree murder and attempt murder for his role in the shooting. The defence does not contest the obvious fact that there were two shooters involved. The identity of the second shooter is the primary issue in this trial. A third individual, Mr. Perez, pleaded guilty to manslaughter on December 6, 2024, for his role in driving J.A. and the unknown shooter to and from the homicide. Mr. Hersi also pleaded guilty on December 6, 2024, to accessory after the fact to manslaughter for his part in assisting Mr. Perez after the shooting. To be clear, the defence not only admitted that Mr. Hersi, Mr. Perez, and J.A. pleaded guilty to the above offences, but admitted in these proceedings the pertinent facts upon which their pleas were based.
[4] The Crown’s principal position is that O.W. was the second shooter. In the alternative, the Crown maintains that O.W. counselled the murder from afar and is therefore guilty of murder pursuant to principles of party liability. The defence concedes that the unknown shooter committed first-degree murder and attempt murder.
[5] The Crown’s primary theory is as follows. The deceased, O.W. and J.A. were at one time good friends. They had a falling out some weeks or months prior to the shooting. The exact timing of the rift is unclear, so too is its basis. There is no evidence before me regarding the precise nature of the conflict, but little dispute that the friendship between them had come to an end in the weeks or months leading up to the shooting.
[6] In the late evening hours of December 5, 2021, J.A. and O.W. were engaged in an intense argument with the deceased on Instagram Live, a forum viewable by other Instagram users. The Crown alleges that O.W. threatened the deceased with a firearm during the exchange and that J.A. also levied threats against the deceased. After the Instagram Live session ended, O.W. and J.A. quickly devised a plan to murder the deceased. The pair enlisted the assistance of Mr. Perez.
[7] O.W. changed his clothing from a pair of distinctive jeans and brown boots to a black puffy jacket, dark jogging pants, and black running shoes. Mr. Perez, Mr. Hersi and O.W. then travelled from 1485 Caldwell Ave., O.W.’s location during the Instagram Live argument, to Orleans to pick up a Ford F-150 truck that belonged to Mr. Perez’s father. In the meanwhile, J.A. took a taxi from Gatineau, Quebec, to 1485 Caldwell Ave. to meet the other males.
[8] When Mr. Perez and the others returned to 1485 Caldwell Ave. with the truck, J.A. joined them. Mr. Perez then drove J.A. and the second shooter, who the Crown argues was O.W., to the area where the deceased was staying. After circling the neighbourhood numerous times, Mr. Perez parked the truck near the deceased’s residence. J.A. and the second shooter exited the truck and approached the deceased’s home on foot. J.A. and the second shooter entered the home through the front door seemingly with the assistance of an unknown third party inside the residence.
[9] J.A. and the second shooter went upstairs, kicked open the deceased’s bedroom door, and shot both the deceased and X.R. numerous times as they lay in bed. J.A. and the second shooter immediately fled the scene and ran back to the truck. Mr. Perez drove the two shooters back to 1485 Caldwell Ave. where they are seen on video footage entering the apartment complex through the backdoor. Mr. Perez and Mr. Hersi drove to Orleans to return the truck and then drove back to 1485 Caldwell Ave. Within 20 minutes of returning, Mr. Perez, Mr. Hersi, and O.W. made a rap video on Snapchat celebrating the murder.
[10] Most, if not all, of the above facts in terms of how the murder unfolded are not contested. The issue in this case is the identity of the second shooter. The Crown contends that O.W. left 1485 Caldwell Ave. with the group of males and committed the murder with J.A. The defence contends that a reasonable counternarrative arises from the evidence or lack thereof, i.e., that O.W. remained at 1485 Caldwell Ave., and an unidentified male from the complex left with the group and committed the homicide with J.A.
[11] The Crown’s case is entirely circumstantial. There is no direct evidence linking O.W. to the shooting. The Crown relies on the fact that O.W. was with J.A. the day before the shooting on December 5, 2021, at 1485 Caldwell Ave. while J.A. was in possession of a handgun; O.W. was present at the same apartment complex at 1485 Caldwell Ave. with Mr. Perez both before and after the shooting; O.W. was observed on Instagram Live threatening the deceased with a firearm approximately four and a half hours before the shooting; and O.W. is seen celebrating with Mr. Perez and Mr. Hersi in a rap video made approximately two and a half hours after the shooting in the same apartment at 1485 Caldwell Ave. The Crown asserts that, when considered collectively, the above facts support no reasonable inference other than that O.W. was the second shooter.
[12] Effectively, the Crown rests its case on four main pillars: means, opportunity, motive, and post-offence celebratory conduct. I will address each in turn, though I appreciate that the evidentiary record must be viewed as a whole when determining whether the Crown has proven O.W.’s guilt beyond a reasonable doubt. The evidence cannot be assessed in a piecemeal fashion.
[13] Before moving on to my analysis, however, I note that much of the evidence in this case was tendered by way of admissions. To that end, at the outset, I wish to thank all counsel for the collaborative, efficient, and focused way in which this case was both presented and defended. It was a model of professionalism on both sides.
Means and Opportunity
[14] There is no question that O.W. had both the means and the opportunity to commit the murder. Videos were tendered into evidence that show O.W. at 1485 Caldwell Ave. with Mr. Perez, Mr. Hersi, and J.A. both before and shortly after the shooting. Some of those videos were found on a phone that I find belonged to O.W. I am satisfied that O.W. owned the phone because numerous “selfies” of O.W. were found on the device; the phone was seized pursuant to a search warrant executed at O.W.’s home on December 7, 2021; and the phone was seized from O.W.’s front pocket. Though not formally admitted, the defence did not seriously challenge that O.W. owned the phone on which the videos were found.
[15] One video extracted from the phone depicts J.A. speaking with the individual holding the phone, an individual who is not viewable in the video but who I nonetheless find is O.W. for the same reasons as set out above. Again, the defence did not seriously contest that it was O.W. who made this video of J.A. O.W. made the video at 2:19pm on December 5, 2021, the afternoon before the shooting. In the video, J.A. produces a handgun from his pantleg and points it jokingly at O.W. The defence admitted that the video was taken at the same apartment at 1485 Caldwell Ave. where the group of males involved in the shooting are seen together at various times on December 5 and 6, 2021. The video not only establishes O.W.’s association with J.A. proximate to the shooting, but also demonstrates that O.W. had access to handguns. This video was admitted into evidence pursuant to a successful discreditable conduct application: R. v. O.W., 2025 ONSC 2561.
[16] A second “selfie” video depicting O.W. was extracted from the phone. That video depicts O.W. with Mr. Perez and other unknown males at 7:08pm on December 5, 2021. The defence admitted that this video was also taken inside the same apartment at 1485 Caldwell Ave. The video establishes an association between O.W. and Mr. Perez proximate to the shooting, and that O.W. was at the 1485 Caldwell Ave. apartment the evening before the homicide.
[17] On video footage taken by cameras installed at the 1485 Caldwell Ave. apartment complex, O.W. is seen leaving the building with an unknown male at approximately 7:26pm through the front door, entering a vehicle parked by the front entrance for approximately five minutes, and then re-entering the building at 7:31pm. Though O.W.’s face is not identifiable in the video footage, I am nonetheless satisfied that the individual depicted is O.W. given that he is wearing the same distinctive pants and boots that he is seen wearing in the “selfie” videos taken on his phone that same evening.
[18] O.W. is again depicted on video footage taken by cameras installed at 1485 Caldwell Ave. at 9:17pm on December 5, 2021. O.W. is seen leaving the building via the back entrance and returning not long after. Once again, though O.W.’s face is not visible in the footage, I am satisfied that it depicts O.W. because he is wearing the same clothing as described above. The video footage establishes that O.W. is still at the apartment complex heading into the late evening hours of December 5, 2021.
[19] O.W. is also seen at the same apartment at 1485 Caldwell Ave. after the shooting and with the individuals now confirmed to have been involved, J.A., Mr. Perez, and Mr. Hersi.
[20] In a selfie-style video taken by O.W. on his phone at 5:21am on December 6, 2021, O.W. is depicted smoking and rapping with J.A. at the same 1485 Caldwell Ave. apartment. O.W. takes another selfie-style video of himself smoking just minutes later. O.W. is wearing the same clothing he was seen wearing on December 5, 2021.
[21] Finally, at 6:09am on December 6, 2021, nearly three hours after the shooting, O.W. is depicted in a Snapchat video taken at the same 1485 Caldwell Ave. apartment rapping with Mr. Perez, Mr. Hersi, and a third individual who goes by the street name, “Shadow.” The defence admits that after the shooting, Mr. Perez and Mr. Hersi dropped the two shooters off at 1485 Caldwell Ave. and then drove back to Orleans to switch vehicles. The two arrived back at the apartment complex on Caldwell Ave. at 5:56am. Approximately twenty minutes later, Mr. Perez made a video of the above-noted males rapping in what I find to be a celebratory fashion. The caption of the video reads, “why the fuck do they keep trynna play with a Reaper.”
[22] I have more to say on the celebratory nature of the video below when I discuss what it may add to the Crown’s case in terms of identifying O.W. as the second shooter. But, at minimum, the video is another piece of evidence demonstrating that O.W. was with those involved in the murder at the 1485 Caldwell Ave. apartment both before and shortly after the shooting. Further, it is another piece of evidence confirming that O.W. was in the same apartment complex from where the second shooter exited before the shooting and returned after the shooting.
[23] The evidentiary record before me clearly establishes that O.W. had both the means and opportunity to commit the murder and had a temporally close association with the other individuals known to be involved. With that said, the Crown fairly concedes that O.W. did not have exclusive opportunity. Put another way, there were other individuals inside the 1485 Caldwell Ave. apartment both before and after the shooting who were not involved in the deadly violence. However, the Crown still maintains, rightfully, that O.W.’s presence in the apartment and his association with J.A., Mr. Perez, and Mr. Hersi remains a piece of circumstantial evidence to be considered alongside the evidence as a whole.
[24] The defence maintains that there are other available inferences that can reasonably be drawn from this evidence other than O.W. being the second shooter given the presence of others in the apartment who were not involved in the murder. I agree. However, the rule in Hodge’s case is not applied to individual pieces of evidence, but rather to the evidence as a whole when considering the ultimate issue: see Stewart v. The Queen, [1977] 2 S.C.R. 748; R. v. Morin, [1988] 2 S.C.R. 348. O.W.’s association with J.A., Mr. Perez, and Mr. Hersi proximate to the shooting, and his presence in the same apartment complex that the second shooter was seen leaving, does not, by itself, need to bear the full persuasive burden to be considered probative in the final analysis.
[25] I will address one other area of contention as it relates to means and opportunity before moving on to address the other pillars of the Crown’s circumstantial case.
[26] At 11:50pm, Mr. Perez, Mr. Hersi, and a third male are seen via video footage leaving the apartment complex at 1485 Caldwell Ave. via the front lobby to go pick up the truck in Orleans. I am easily satisfied that the third male seen in the video footage leaving the apartment complex is the second shooter. This was not seriously contested by the defence. The third male is with Mr. Perez and Mr. Hersi, and he is wearing the exact same clothing worn by the second shooter in video footage taken later near the scene of the homicide: a black puffy coat, grey jogging pants with a distinctive right back pocket, and black running shoes with white soles.
[27] The parties part ways, however, on whether this individual is O.W. Both agree that the quality of the video footage in the lobby and vestibule of 1485 Caldwell Ave. does not permit a Nikolovski identification. However, the defence maintains that the video footage positively excludes O.W. The defence contends that the third male in the video footage has a stubbier nose than O.W. and lacks O.W.’s prominent eyebrows. The Crown disagrees.
[28] I agree with the Crown. The video footage is very grainy and somewhat distorted. The facial characteristics of the second shooter are not reliably depicted. I accept that when the video footage is paused, O.W.’s pronounced eyebrows are not visible on the third male. However, in video footage taken near the murder scene after the shooting, dark eyebrows are clearly visible on the second shooter, who I have found is the same individual depicted in the footage from 1485 Caldwell Ave. The quality of the video footage from 1485 Caldwell Ave is simply too low to reveal anything reliable about the facial features of the second shooter.
[29] As a result, though the video footage of the males leaving the complex establishes that the second shooter exited from the same apartment complex where O.W. was present, a fact relevant to identification, the facial features of the third male as depicted in the footage do not render it more or less likely that O.W. was the second shooter.
[30] In addition, O.W. is not seen wearing any of the clothing worn by the second shooter in the videos taken of him both before and after the homicide, with one potential caveat that I discuss below regarding O.W.’s scarf. However, I find that the lack of connection between O.W. and the second shooter’s clothing does not undermine the Crown’s case. As a matter of common sense, I have no difficulty accepting that an individual planning to commit murder would change into darker, unrecognizable clothing, and then change back into their original clothing before taking numerous videos of themselves, with some being made available on social media.
[31] Though the Crown concedes that O.W. cannot be tied to the shoes, coat, or pants worn by the second shooter, the Crown argues that the second shooter is seen fleeing from the murder scene wearing the same distinctive Burberry scarf over his face that O.W. is seen wearing in many of the “selfie” videos taken at the 1485 Caldwell Ave. apartment. After the shooting, video footage captures the shooters fleeing the deceased’s home and running back through the housing complex where the deceased lived at the time. One of the videos depicts the second shooter wearing a piece of clothing over his face. The Crown argues that this piece of clothing is the same scarf that O.W. is seen wearing both before and after the shooting at 1485 Caldwell Ave. I am nowhere near satisfied of this fact. I have watched the video footage repeatedly and at various speeds. In my view, the exact nature of the item covering the second shooter’s face is indiscernible. It could be the scarf. It could easily not be. I cannot tell with any degree of confidence.
[32] Moreover, for two reasons, I find it more likely that the item worn by the second shooter over his face was not the scarf seen worn by O.W. earlier in the evening. First, I agree with the defence that it defies common sense that O.W. would think to change his shirt, pants, coat, and shoes to avoid detection yet wear the same distinctive scarf. Second, the scarf worn by O.W. in the various videos is not necessarily a small piece of clothing. In the video footage taken of the second shooter leaving the apartment complex and returning after the shooting, there is no sign of that scarf hanging out of a jacket or pant pocket, or otherwise seen around the shooter’s neck under his coat. Though J.A. is later seen with a backpack that could have concealed the scarf, J.A. is not with the group when they first leave the apartment near midnight. The item worn by the second shooter after fleeing the scene could just as easily have been a smaller, camouflage colored bandana that is more easily concealed. It is just too difficult to tell.
[33] In summary, I find that the video footage of the second shooter leaving the apartment complex is neutral on the issue of identification other than establishing opportunity, i.e., that the second shooter left from and returned to the same apartment complex where O.W. was present both before and after the shooting.
Celebratory Video
[34] As noted above, at 6:09am on December 6, 2021, approximately three hours after the shooting, Mr. Perez, Mr. Hersi, O.W., and a fourth individual, “Shadow,” were depicted in a Snapchat rap video. Mr. Perez made the video within 20 minutes of arriving back at the 1485 Caldwell Ave. apartment. The Crown argues that O.W.’s participation in this video is further circumstantial evidence of his involvement in the homicide. I agree.
[35] First, I have no difficulty accepting that those depicted in the video are celebrating the deceased’s murder, something I can only describe as a grotesque and deeply inhumane act. I am satisfied that the individuals are celebrating the deceased’s death because two of the four individuals depicted in the video were in the truck when it dropped the shooters off near the murder scene and when the shooters returned after brutally killing the deceased. They were clearly aware of what happened. Indeed, they have both pleaded guilty to related offences. Further, the caption of the video refers to death and the video was made within three hours of the shooting. Finally, the demeanour of those depicted is marked by joy and pride.
[36] Second, O.W.’s victorious bearing regarding the deceased’s killing constitutes circumstantial evidence that he “had obtained a goal to which he aspired,” which in turn supports an inference that he was one of the shooters: see R. v. Aravena, 2015 ONCA 250, para 129; R. v. Café, 2019 ONCA 775. Of course, there are other reasonably available inferences that could be drawn from the video, one being that O.W. was happy about the deceased’s death despite having no direct involvement in it. But, as I state above, the “beyond a reasonable doubt” standard applies to the overall evaluation of evidence in criminal cases, not to individual pieces of evidence or facts.
[37] I appreciate, however, that the video depicts a third party who was not involved in the murder. Shadow’s presence in the video drives home the point that O.W.’s participation is far from proof positive that he was the second shooter. At least one other person in the apartment who was not implicated in the murder also glorified and legitimized the violence. Nonetheless, O.W.’s apparent satisfaction following the killing remains relevant and serves as an additional piece in the Crown’s circumstantial case.
Motive and Animus
[38] This leads me to the related concepts of motive and animus, which together form the lynchpin and driving force of the Crown’s case. The Crown maintains that O.W. exhibited a fatal malice towards the deceased approximately four hours before the shooting, and that fact, when considered alongside the evidence of means, opportunity, and post-killing celebration, establishes O.W.’s guilt beyond a reasonable doubt. The Crown concedes that without the evidence regarding motive and animus, the remaining evidence in this case could not sustain a conviction. This was an imminently reasonable concession and one consistent with the Crown’s quasi-judicial role.
[39] The evidence of O.W.’s purported animus towards the deceased stems primarily from the evidence of Rebecca Guindon and to a much lesser extent the evidence of P.R. Ms. Guindon testified that while watching Instagram Live at approximately 11:00pm on December 5, 2021, she saw and heard O.W. threaten to harm the deceased while holding a handgun. The Crown contends that Ms. Guindon’s evidence establishes that O.W. was the “principal agitator” in the dispute, which renders his involvement as the second shooter the only reasonably available inference on the whole of the evidence.
[40] For reasons given below, I find Ms. Guindon’s evidence unreliable. Overall, she was loose with her language, careless with details, and exhibited to some degree a bias against O.W. Though I appreciate that one would naturally hold a bias against the person they feel is responsible for taking the life of a loved one, and that this should not necessarily undermine their reliability or credibility as a witness, I am mindful of it in this case given other problems with Ms. Guindon’s evidence and memory. As a result, I approach her evidence with caution. First, instead of listening to the questions asked and providing thoughtful answers, Ms. Guindon was quick to answer and took gratuitous jabs at O.W. that were at times unrelated to the questions posed. I agree with the defence that Ms. Guindon was particularly argumentative during cross-examination.
[41] Second, Ms. Guindon repeatedly made conclusory statements only for me to later discover that there was either little or no basis for them. For example, she testified that the Instagram Live argument was over “popularity and music.” This was an important question because the answer impacted the degree to which O.W. may have been driven to harm the deceased. But when asked moments later whether she was able to ascertain the subject matter of the argument from what the males were saying, she answered “no.” Therefore, Ms. Guindon was either conveying information about the argument that she received from someone else without so stating, or she was relying on unstated presumptions or assumptions.
[42] Further, when asked what she heard O.W. say on Instagram Live, she answered that O.W. said “he was going to shoot [the deceased]” and that “pretty much he would end [the deceased].” When asked if she could recall the specific words, she stated, “yes” but then was unable to recall them. The Crown initially sought to refresh Ms. Guindon’s memory but then abandoned that attempt. In cross-examination, Ms. Guindon, though in a moment of frustration, agreed that she may not have heard O.W. specifically threaten to shoot the deceased, and that she may have subconsciously added that detail to her narrative after learning that the deceased had been shot. She agreed that O.W. may only have said that the deceased was “going to get it.” Ms. Guindon conceded that the details she learned about the murder after-the-fact may have influenced her memory of what she heard on Instagram Live. This is of particular concern to me given that she spoke with three different individuals regarding the shooting before speaking with the police, including J.P., an individual purportedly inside the home when the shooting took place. Ms. Guindon agreed in cross-examination that before she spoke with the police, a “few people” had spoken to her about the shooting.
[43] The Crown argues that Ms. Guindon’s inaccurate description of what O.W. purportedly said to the deceased is not problematic because Ms. Guindon was reasonably paraphrasing. The Crown posits that Ms. Guindon testified that O.W. said he was going to “shoot” the deceased because she heard O.W. threaten the deceased while holding a handgun, a combination of facts that together constitute an implicit threat to shoot someone. I agree that brandishing a handgun while threatening someone constitutes an implicit threat to use lethal force. That is not the issue. The problem is that Ms. Guindon did not disclose that she was paraphrasing or expressing her own interpretation of the words she heard or the conduct she observed. She was asked very specifically what she heard O.W. say to the deceased. Her response exemplifies either carelessness on her part regarding critical details of what happened or the susceptibility of her memory to tainting by other events that transpired after the shooting.
[44] The potential tainting of her memory is of particular concern because within hours of watching the Instagram Live session and before speaking with police, Ms. Guindon came into possession of an unrelated video depicting O.W. waving around what could have been a firearm. In her statement to the police, she describes O.W. as having possessed a firearm during the Instagram Live session. At the time of her interview, Ms. Guindon already knew that the deceased had been shot and she had spoken with at least three individuals regarding the shooting before she spoke with the police. Further, she conceded in cross examination that what she learned about the shooting after-the-fact may have influenced her memory of what O.W. said to the deceased during the Instagram Live session. This raises live concerns about whether her memory of O.W. possessing a firearm during the Instagram live session was similarly compromised by her having seen a different video that very morning of O.W. possessing a firearm.
[45] Third, Ms. Guindon’s evidence was often difficult to comprehend in areas that were not inherently complicated. For example, by way of a discreditable conduct application, the Crown initially tried to tender a Snapchat video of O.W. holding what may have been a firearm. This is the video described above. The video was provided to the police by Ms. Guindon during her interview on December 6, 2021. The discreditable conduct application proceeded by way of a blended voir dire. The Crown asked Ms. Guindon when it was that she first received the video. She answered that she received it the evening before the deceased’s death and that she gave it to the police after the shooting. The Crown then refreshed her memory with the statement she provided to the police on December 6, 2021. Ms. Guindon then testified that she received the video a week before the shooting. She then immediately contradicted herself and said that she received it on the night of the shooting and possessed it for about an hour before she gave it to the police.
[46] The Crown cross-examined Ms. Guindon pursuant to section 9(2) of the Canada Evidence Act. She agreed once again that she received the video a week before the shooting. However, for the second time she went on to contradict herself and state that she received the video right after she found out that the deceased had been killed.
[47] Ms. Guindon further testified that the video was taken on the same day that she provided it to the police and that the date and time was reflected on the video itself. She was quickly corrected on this point when the Crown played the video. The only indication of time and date is the phrase “one month ago” that appears at the top of the screen. Ms. Guindon then re-affirmed that she received the video on the same day as the shooting and after she found out that the deceased had been killed. To say the least, her evidence on this point was all over the map. I, too, tried at one point to clarify Ms. Guindon’s evidence. The Crown ultimately abandoned its discreditable conduct application as it related to this Snapchat video, but Ms. Guindon’s evidence in this area remains a troubling example of her lack of attention-to-detail and her tendency to affirmatively state facts with confidence only to later be proven incorrect.
[48] Fourth, Ms. Guindon contradicted herself on other occasions as well. She testified in cross-examination that she only followed the deceased on social media and did not follow the other males in the group. Later, in cross-examination, she stated that she followed many of the males on Instagram at the time. She offered no logical explanation for this obvious contradiction. Further, Ms. Guindon also contradicted herself when discussing her drinking habits in December 2021. She disagreed in cross examination that she was drinking “a lot” in December 2021. She testified that she would have two to three tequila shots per day and only on weekends when she did not have her kids. Yet, she told the police during her interview that she had literally been drinking non-stop since her grandmother passed away about a month before the shooting. She explained in cross examination that when she told the police that she “literally had not stopped drinking since her grandmother passed away,” she was referring to the two to three shots per day on weekends. I find this was an evident attempt by Ms. Guindon to downplay her alcohol consumption in December 2021. If Ms. Guindon had been drinking heavily in December 2021, it could have impacted the reliability of her observations about what occurred on Instagram Live.
[49] Ms. Guindon’s evidence regarding the deceased’s living arrangements was also inconsistent with that of V.C. and her son, P.R. V.C. testified that the deceased had officially lived with them for approximately a year before the shooting, that he called her “mom,” and that she always knew where he was and what he was doing. She testified that he spent virtually every night at her home except “a night here or there.” V.C. never heard the deceased talk about Rebecca Guindon. P.R. also testified that the deceased lived with them “full time.”
[50] Ms. Guindon gave conflicting evidence regarding the deceased’s living arrangements. She testified that the deceased lived with her on Ritchie Street, that she considered him a stepson, and that she planned to adopt him. Ms. Guindon testified that the deceased lived both at her place and the “Iris house,” but that he slept at her home three to four nights a week, he had his own room at her residence, and that he kept all his belongings at her home. Ms. Guindon disputed that the deceased was living primarily with V.C. Ms. Guindon testified that she had never heard of V.C. or P.R.
[51] Finally, Ms. Guindon appeared frustrated and exasperated at various times during what I found to be a relatively short, respectful, and fair cross examination. I appreciate that testifying can be a difficult experience for many, particularly in a serious case where emotions are running high. Just the same, I find that Ms. Guindon was not a focused witness who understood the seriousness of her role or the evidence she had to give. She answered questions quickly with little reflection and at times with evident irritation. To be clear, her manner of giving evidence is not dispositive of her credibility or reliability. But it is one additional factor that gives me pause among the other issues in her evidence.
[52] In summary, Ms. Guindon did not exhibit the hallmarks of a dependable witness. While none of the individual shortcomings in her evidence are, on their own, necessarily fatal to her reliability or credibility, their cumulative effect makes it, in my view, unsafe to rely on her account of O.W.’s conduct on Instagram Live without confirmatory evidence. This leads me to the evidence of X.R. and P.R. in relation to that issue.
[53] P.R. was 18 years old when testifying. In December 2021, he lived with his mother, V.C., along with numerous other young persons at various times, at the home where the deceased was killed. P.R. suffers from mental health issues. He presented as a vulnerable and unsophisticated witness easily open to suggestion. At the time of the shooting, P.R. resided in troubling, unstable, and unhealthy circumstances for a young man. Neither the front nor the back door of his home locked properly. He and his mother had to barricade the front door with furniture to prevent others from entering in the night. Numerous young teens lived in the home at various times. The home was dirty and unkept. A large number of open liquor bottles can be seen all over the home in the scene photos. Ms. Guindon referred to it as a “trap house” because it was known to be a place where people drank alcohol and consumed drugs. The scene photos certainly support her evidence in this respect.
[54] P.R. was home on December 5, 2021, and in the early morning hours of December 6, 2021. P.R. testified that he watched a portion of the Instagram Live feed for approximately 5-10 minutes. He heard O.W., J.A. and the deceased arguing. After refreshing his memory with his police statement, P.R. testified that J.A. threatened to come to their home and shoot them. P.R. could not recall if O.W. said anything about shooting them. In cross examination, P.R. testified that the only person threatening the deceased was J.A. He agreed that O.W. was “beefing” with the deceased, but that it was J.A. who came on the Instagram Live and told the deceased that he was “going to shoot [him]” because he was “beefing T.T.” P.R. agreed that he at no point heard O.W. threaten the deceased. P.R. testified that he did not think that anything violent would happen, so he just went to bed. P.R. confirmed in cross examination that sometime during the day on December 5, 2021, he blacked out due to alcohol and drug consumption.
[55] X.R. was a friend of the deceased at the time of the shooting. He described the deceased as a brother. X.R. was also living with P.R. and V.C. in December 2021. He was sixteen years old at the time. On his way home from work on December 5, 2021, he spoke to the deceased on Instagram Live. For approximately 10-15 minutes, they spoke about music and their future plans. X.R. does not recall who else was on the chat. X.R. observed no aggression when he was on Instagram Live with the deceased. When X.R. arrived home he took a shower and hung out with his girlfriend at the residence. After his girlfriend left, he “chilled” with the deceased at the home and the two later went to bed in one of the upstairs bedrooms. X.R. woke up in the early morning hours when J.A. and the second shooter kicked the bedroom door down and opened fire. X.R. was shot six times in total.
[56] Notwithstanding the different narratives of P.R., Ms. Guindon and X.R. in relation to what occurred on Instagram Live, I accept that a heated exchange took place on Instagram Live between the deceased and O.W. and J.A. This is a commonality between the evidence of P.R. and Ms. Guindon, who had no opportunity to collude before speaking with the police. Further, the evidence of an Instagram Live argument having taken place is largely supported by J.A.’s later participation in the shooting. I find that X.R. spoke with the deceased before the argument with J.A. and O.W. unfolded which explains why he did not observe it.
[57] The difficulty for the Crown, however, is that neither X.R. nor P.R.’s evidence confirms or corroborates the evidence of Ms. Guindon in relation to O.W.’s conduct on Instagram Live; specifically, that he threatened the deceased with a firearm, or for that matter that he threatened him at all. Neither X.R. nor P.R. overheard O.W. threaten the deceased.
[58] With that said, I do not find that X.R. and P.R.’s evidence undermines or contradicts that of Ms. Guindon. None of P.R., X.R. or Ms. Guindon watched the entire argument. X.R. had more of a one-on-one exchange with the deceased and does not appear to have been present when J.A. and O.W. began to argue with the deceased. P.R. only watched about 5-10 minutes of the argument then went to bed. Though he did not observe O.W. with a firearm or hear O.W. levy a threat against the deceased, he did hear “beef” between the deceased and O.W.
[59] It may be that Ms. Guindon is mistaken in terms of her observations, or it may be that her and P.R. simply observed different portions of the Instagram Live session. I cannot resolve that issue with confidence. And given the difficulties in Ms. Guindon’s evidence, I cannot accept her account regarding O.W. without confirmatory evidence. P.R.’s evidence does not confirm the salient portions of Ms. Guindon’s narrative regarding O.W. beyond there having been a dispute with the deceased on Instagram Live in which O.W. played some part.
[60] As stated, I am willing to accept that there was an argument between J.A., O.W., and the deceased on Instagram Live that was heated in nature. But in terms of what exactly was said and by whom, I am unsure. Similarly, I have no reliable evidence before me regarding what the males were arguing about. Ms. Guindon testified that they were arguing over “music and popularity,” but she testified that her belief was not based on the words spoken. Without knowing more about the nature of the conflict, in my view, little can be safely inferred from the “why” regarding the “who.” I have no idea what the argument was about or who was primarily or exclusively involved.
None of the witnesses watched the entire Instagram Live exchange. I cannot determine with any degree of confidence who may have been primarily motivated to harm the deceased.
Totality of the Evidence
[61] Given that the Crown relies exclusively on circumstantial evidence to prove identification, I must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the evidence or lack thereof is that O.W. was the second shooter: R. v. Villaroman, [2016] 1 S.C.R. 1000, at para. 30. Plausible counternarratives do not have to arise from proven facts but may stem from a lack of evidence as a reasonable doubt is one logically connected to the evidence or absence thereof: Villaroman, at paras. 28, 35; R. v. Lifchus, [1997] 3 S.C.R. 320, para 36.
[62] With that said, the Crown need not disprove every possible conjecture that may be consistent with the innocence of the accused. Rather, it must negative only other reasonable or plausible theories that are inconsistent with guilt: Villaroman, at para. 37. These “reasonable possibilities” must be based on logic, human experience, and common sense as applied to the evidence or lack thereof, not speculation: Villaroman, at para. 37.
[63] Though motive is not an essential element of the offence, it is a critical piece of the puzzle in the circumstances of this case. The Crown’s theory hinges entirely on a finding that O.W. was the “principal agitator.” I simply cannot make that finding on this evidentiary record given that I do not accept Ms. Guindon’s evidence on this point.
[64] There are simply too many unknowns and gaps in the evidence to be sure of who was primarily motivated to harm the deceased. For example, both parties accept that someone inside P.R. and V.C.’s home assisted the shooters. P.R. testified that at least two other young males were staying at the home in 2021. They were at the residence on December 6, 2021. Both P.R. and V.C. testified that the front door was consistently barricaded by items of furniture because the lock was broken. The shooters are initially seen approaching the front door of the home and then moving to the backdoor. They remain out of view of the cameras in the back of the home for approximately ten minutes. The shooters then re-appear at the front of the residence and quickly enter through the front door. Scene photos demonstrate that the items barricading the front door had been moved.
[65] In addition, V.C. testified that approximately a week before the shooting, P.R. and the deceased switched bedrooms so that the deceased could have the larger bed as he often had to share it. Despite that recent change, the shooters had no difficulty locating the deceased. They knew what bedroom he was in. Someone inside the residence was clearly communicating with the shooters and assisting them. There is no evidence before me regarding who may have done so and why.
[66] In the end, I am satisfied that O.W. and J.A. were both upset with the deceased. That much is clear. Evidently, J.A. harbored a lethal animus towards the deceased. I do not know why. I do not know who else at 1485 Caldwell Ave. may have been upset with the deceased. I do not know who else may have participated on the Instagram Live session. No witness watched the entire exchange. I know at least one other person was willing to assist the shooters from inside the home where the deceased was staying. I do not know why. The gaps in the evidence significantly undermine what circumstantial inferences can be drawn regarding the identity of the second shooter. On the evidence I am willing to accept, J.A. could just as easily have been the driving force behind the shooting. In those circumstances, I cannot possibly be satisfied beyond a reasonable doubt that O.W. was the only person at 1485 Caldwell Ave. that would have been willing to assist him.
[67] On the Crown’s own theory, O.W. inspired the shooting and J.A. was willing to commit murder on his behalf. But had J.A. been the driving force behind the shooting, perhaps there was a third party willing to assist him in the way that the Crown argues J.A. was willing to kill for O.W. Mr. Perez, an individual not known to have been involved in the Instagram Live session, was willing to drive across town to pick up a vehicle to be used in the offence, and then drive two murderers both to and from the homicide. Mr. Hersi, too, was willing to do his part after the fact. Clearly, the individuals at 1485 Caldwell Ave. were willing to engage in grave, lethal criminal acts for their friends. And O.W. was not the only individual present at 1485 Caldwell Ave.
[68] As noted by the Court in Villaroman, at para. 38, the line between a “plausible theory” and speculation is not always easy to draw. The ultimate question is “whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”: Villaroman, at para. 38. Here, that question must be answered in the affirmative given the uncertainty regarding O.W.’s role in the Instagram Live argument; the unknown strength of any animus he may have harbored against the deceased; and the potential involvement of others. While O.W. had the opportunity to commit the offence given his proven presence at 1485 Caldwell Ave. at the relevant time, so, too, did others. O.W. shamelessly celebrated the murder after-the-fact. So, too, did others who were not involved. What sets O.W. apart from those individuals is his supposed conduct on Instagram Live. However, I am not satisfied that he threatened the deceased with a firearm, or that he threatened him at all. Without that finding, particularly given the many gaps in the evidence, I cannot be satisfied beyond a reasonable doubt that O.W. was the second shooter.
[69] I appreciate that a trial will seldom resolve every question presented by the evidence. Doing so is not required. The issue here, however, is that the evidentiary gaps arise in the very same body of evidence from which the Crown urges me to draw decisive and dispositive inferences.
Party Liability
[70] The Crown advanced an alternative argument in the event I was not satisfied beyond a reasonable doubt that O.W. was the second shooter. The Crown maintains that, in those circumstances, I would have to be satisfied beyond a reasonable doubt that O.W. counselled the homicide from inside 1485 Caldwell Ave. In my view, this argument suffers from the same evidentiary flaws as set out above.
[71] There is no direct evidence of counselling before me. There is no evidence of what, if any, communications took place between O.W. and J.A., Mr. Perez, or Mr. Hersi regarding the shooting. Rather, the Crown asks me to infer counseling from the fact that O.W. was the principal agitator within the dispute. The Crown contends that if O.W. was the primary agitator, then the only reasonable inference available from the evidence—assuming he was not the second shooter—is that he counselled the others to commit the offence. However, for the same reasons as set out above, I am not satisfied that O.W. was the driving force behind the murder.
[72] As stated above, I am not sure what role O.W. actually played in the conflict. The Crown’s theory rests on the notion that no one else at 1485 Caldwell Ave. had their own independent motivation to harm the deceased, and O.W. must therefore have counselled the offence: see R. v. George-Nurse, 2018 ONCA 515. However, that factual scenario is, in many respects, inconsistent with the notion that O.W. did not participate in the act itself. If he were the primary aggressor, one would reasonably expect him to have taken part in the shooting. I have no compelling evidence before me that O.W. could somehow convince four other individuals to commit murder on his behalf while he waited in the safety of an apartment 15 minutes away.
[73] The Crown’s argument also reinforces the point I make above regarding the identity of the second shooter. The Crown concedes—and indeed contends—that both J.A. and another individual at the building were prepared to shoot and kill the deceased, driven by a distorted sense of loyalty to O.W. However, if that was the prevailing mindset among those present at 1485 Caldwell Ave., it stands to reason that any number of them might also have been willing to support J.A. in his own unhinged pursuit of vengeance, had he been the primary instigator of the violence.
[74] I am satisfied that O.W. played some role in the Instagram Live dispute. Beyond that, I know nothing about what happened on Instagram Live, why it happened, who else may have participated, or why the relationship between O.W. and the deceased originally broke down. I cannot find from the little I know regarding the conflict that the only reasonable inference to be derived from the evidence or lack thereof is that O.W. counselled the homicide from 1485 Caldwell Ave.
Conclusion
[75] Without question, the orchestrated violence inflicted on the deceased and X.R. is as tragic as it is infuriating. The facts of this case expose a harsh and chilling reality: that there are those among us who would so ruthlessly and heartlessly take a young life, then openly revel in a perverted sense of triumph. Indeed, the rap video made shortly after the murder reflects a depth of inhumanity and depravity that defies my comprehension. J.A. and the second shooter shot an unsuspecting, unarmed, and defenseless young man as he lay in his bed. That constitutes nothing but a shameful, evil act fueled by profound cowardice.
[76] But the standard of proof beyond a reasonable doubt lies as a safeguard against wrongful convictions and must never yield to anger, sadness, or frustration. Decisions about guilt or innocence must be based solely on evidence and reason—not on emotional reactions to senseless violence. If people come to believe that convictions can be secured on insufficient evidence, their trust in the justice system’s integrity and fairness will erode.
[77] My sole responsibility in this proceeding is to determine whether the evidence presented by the Crown meets the high standard of proof required of it. I am not satisfied that it does for the reasons given.
I find O.W. not guilty of both counts.
Released: June 2, 2025