His Majesty the King v. Isaiah Goodman, 2025 ONSC 331

R. v. Goodman, 2025 ONSC 331

CITATION: R. v. Goodman, 2025 ONSC 331

NEWMARKET COURT FILE NO.: CR-22-91110163-00

DATE: 20250117

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ISAIAH GOODMAN

Defendant

Thompson Hamilton, for the Crown

Jordana Goldlist and Ashley Audet, for the Defendant

HEARD: November 12 – 15 and 19 – 21, 2024

REASONS FOR DECISION

CAMERON J.:

Overview:

1Isaiah Goodman is charged with the second degree murder of Anthony Acquaviva on February 1, 2022 in Markham, Ontario. His trial proceeded before me without a jury with the consent of all parties and the Attorney General for Ontario.

2Mr. Goodman does not dispute that he shot and killed Mr. Acquaviva during an interaction between them. It is Mr. Goodman’s position that he was acting in self-defence. In the alternative, Mr. Goodman argues that he did not intend to kill Mr. Acquaviva when he shot at him five times, therefore, if I find that he was not acting in self-defence, he did not have the requisite mens rea for murder and should be convicted of the lesser included offence of manslaughter.

3The Crown contends that Mr. Goodman intended to kill Mr. Acquaviva when he shot at him five times and that he was not acting in self-defence.

The Evidence:

Agreed Statement of Facts:

4Anthony Acquaviva was 17 years old at the time of his death. He was shot and killed on February 1, 2022 in the area of Purple Finch Road and Littleleaf Crescent in Markham, Ontario. His death resulted from one perforating gunshot wound to his torso. The entry point of the bullet was his left posterior flank. The bullet travelled through his kidney and spleen, injuring his duodenum and colon. The bullet perforated his left diaphragm, left inferior lung lobe. The bullet exited his right posterior shoulder.

5Mr. Acquaviva was driven to the scene of the shooting by his sister Sabrina Acquaviva in the family’s Chevrolet Cruz. Mr. Goodman arrived at the scene as a passenger in a Chevrolet Malibu driven by a person named Jermain Andrews. Also in the car was Joshua Farmer who was seated in the front passenger seat and a young person, J.B.G., who was seated in the rear of the car with Mr. Goodman.

6Shortly after the shooting, Mr. Andrews was arrested at the scene standing near the Malibu. Ms. Acquaviva drove into Mr. Farmer who was critically injured in the collision. He was later arrested at the hospital. He survived. J.B.G., the young person, was arrested in the vicinity of the shooting. Mr. Goodman was not arrested until February 10, 2022.

7The first 911 call after the shooting was placed at 6:44 p.m.

8Mr. Goodman’s phone was recovered by the police having been dropped at the scene of the shooting. A video from the phone was recovered which showed Mr. Goodman in the rear of the Malibu holding a firearm. The video was taken at 5:34 p.m. on the evening of the shooting.

9An Adidas “fanny pack” containing just over $7,000 was found in the front passenger floor area of the Malibu.

10An empty brown sheath was recovered by police on the roadway in the area of 14 Purple Finch Road on February 1, 2022. This is in the immediate vicinity of the shooting. A large knife was located on the driver’s floor in the Cruz (the vehicle driven by Sabrina Acquaviva).

11The police also recovered a brown paper “Rexall” bag in an alleyway along the route that J.B.G. ran after the shooting. J.B.G. can be seen carrying this bag on the video surveillance recovered by the police. Inside this bag were two bags labelled as “Pine Tar”, a marijuana cereal bar, and a bottle of purple liquid. Loose on the ground near the “Rexall” bag was an iPhone.

12A number of text messages were also entered into evidence on consent. The text messages contain conversations between Sabrina and Anthony Acquaviva about her driving him while he conducted drug transactions in the neighbourhood. There were also text messages entered into evidence between Mr. Goodman and Deanna Hynes (his ex-girlfriend). In one of these text message exchanges on February 3, 2022, Ms. Hynes relayed the following from a person named “Cy”:

Ms. Hynes: “He said he talked to J7 today. And J7 said it’s your fault when everything went wrong.”

Mr. Goodman: “Bro idc really not listening to what I’m saying and how is it my fault. Okay so I should’ve let the yute do whatever to J7”

13This text exchange took place in a conversation about getting rid of the gun used in the shooting. J7 is a nickname for J.B.G.

14Photographs were also found on Mr. Acquaviva’s phone. These photographs depict large quantities of marijuana and mushrooms as well as “dab pens” and other marijuana products. There are also photographs of prescription cough syrup or “Lean.” Finally, Mr. Acquaviva had photographs of firearms, not suggested to have been in his possession, on his phone.

Sabrina Acquaviva:

15Sabrina Acquaviva is the older sister of Anthony. She was present at the scene of the shooting and is an eye-witness to the events as they unfolded that night. Ms. Acquaviva testified that in the winter of 2021 into the months of January and February 2022, she knew her brother Anthony to be selling “dab pens” to other students in his high school. She testified that she had accompanied him on some of these transactions as his driver, usually while they were on their way to do something else. She agreed that in her statement to the police, she did not disclose this information. When she was confronted with text messages at the preliminary hearing that revealed she had done so, she agreed.

16Ms. Acquaviva testified that on one occasion prior to February 1, 2022 her brother talked to her about getting a “taser” to protect himself. She advised him that he shouldn’t be surprised “if he died by a gun, if he carried a gun.” Ms. Acquaviva denied the suggestion that her brother actually talked to her about getting a gun rather than a “taser.” She essentially said she was speaking metaphorically to deter him from carrying a weapon.

17Ms. Acquaviva testified that on the night of February 1, 2022 her brother was acting unusually anxious or agitated. He did not eat the meal their mother prepared for them and was adamant that he had to meet someone at a specific time. Ms. Acquaviva understood she was driving him to pick up his girlfriend. While en route, Mr. Acquaviva directed her to a specific location near their home and told her to pull over in the area of 14 Purple Finch Road. Mr. Acquaviva got out of his car and walked towards Serviceberry Road, directly north of where she had parked. At first, while Anthony was out of the car, Ms. Acquaviva was not paying attention to what he was doing. She was making a playlist of music on her phone.

18Ms. Acquaviva then looked in her rearview mirror and saw Mr. Acquaviva and another male, who is agreed to be J.B.G., walking back towards her car. Mr. Acquaviva approached the front passenger seat of her vehicle and the other male she observed to be walking back towards his car. This car was now stopped right beside hers. As Mr. Acquaviva was about to open the front passenger door, a male got out of the back passenger seat of the car that had pulled up beside her. This male is agreed to be Mr. Goodman.

19Ms. Acquaviva’s window was open. She overheard her brother and Mr. Goodman saying something about numbers, possibly 60 and 90. She then saw Mr. Goodman, who was standing right next to her, almost within arm’s length, reach over to Mr. Acquaviva and pat down his front pocket. As he did this, she saw a gun in Mr. Goodman’s pocket. She then turned her attention to her brother who was backing up with his hands up and palms out at his shoulder level. Her brother did not have anything in his hands. She did not see him holding a knife.

20Ms. Acquaviva testified that Mr. Goodman then fired the gun. She believed she heard ten shots. She began driving in the direction of Mr. Goodman who was running north towards Serviceberry Road. To do so, she had to do a u-turn. The car that was parked beside her began to move as well. However, it got stuck in the snowbank across the street. Ms. Acquaviva saw Mr. Goodman run between houses. She then did another u-turn and drove back towards her brother. He was still upright and moving. As she pulled near him, he got into the backseat. She believed he was bleeding from his mouth and his chest area.

21Ms. Acquaviva saw the people from the other car running south down the street. She testified that she did not want them to get away. She wanted them to be held accountable. Therefore, she deliberately drove her car into them. One of the people, Mr. Farmer, was hit. The windshield of Ms. Acquaviva’s car completely shattered. She lost control of the car and ended up in a snowbank. Her car was stuck. Ms. Acquaviva, fearful that the shooter or people with the shooter may still be around, asked her brother if he “had anything.” He handed her something. She did not register what it was. At this point a neighbour approached and offered to help. She dropped the item on the floor of the car.

22Emergency personnel arrived. Ms. Acquaviva was taken to a police vehicle. She observed the paramedics working on her brother. She was then taken to the police division where she provided a videotaped statement.

Alexander O’Flaherty:

23Mr. O’Flaherty was 17 years old in February 2022. He was friends with Anthony Acquaviva. They had been friends since grade nine. Both Mr. Acquaviva and Mr. O’Flaherty were selling drugs. For the most part they sold weed, however they did also sell mushrooms and acid. In terms of weed, they sold vape pens, the actual marijuana plant and edibles. They would purchase their supply of drugs from people they saw advertising on Instagram.

24Mr. O’Flaherty and Mr. Acquaviva sold to people they knew, mostly other kids in high school. They advertised through word of mouth or Snap Chat. Both he and Mr. Acquaviva began selling drugs in 2020. For the most part they purchased their supply together because it was cheaper to do so.

25Mr. O’Flaherty believes that they would make approximately $700 in their best month.

26Mr. O’Flaherty was shown photographs of the items found in the “Rexall” bag on the route taken by J.B.G. and that was seen being carried by J.B.G. on the video surveillance. He recognized the “Pine Tar” bags as the type he and Mr. Acquaviva had a week or so before Mr. Acquaviva was shot.

27Mr. O’Flaherty testified that the largest purchase he and Mr. Acquaviva would make of these types of drugs would be a half a pound.

28Mr. O’Flaherty also recognized the bag of edible cannabis found in the “Rexall” bag as the type of product he and Mr. Acquaviva would sell.

29With respect to the bottle of purple liquid also found in the “Rexall” bag, Mr. O’Flaherty recognized it to be a bottle of prescription cough syrup, or “Lean”. He didn’t sell this product but he saw Mr. Acquaviva possess it in the summer of 2020. He did not see Mr. Acquaviva sell it and had no knowledge that he was doing so. Mr. O’Flaherty was aware that a “shot” of “Lean” would cost about $50 to purchase.

30Mr. O’Flaherty was shown a photograph of a red backpack found in the back seat of the Cruz. He recognized this to be Mr. Acquaviva’s bag. Mr. O’Flaherty identified the items found in the bag as the edible cannabis he and Mr. Acquaviva would sell as well as the boxes of weed pens and other cannabis products that were also found in the backpack.

31Mr. O’Flaherty had seen Mr. Acquaviva with mushrooms.

32Mr. O’Flaherty identified the knife found on the driver’s seat floor of the Cruz as Mr. Acquaviva’s knife. He had first seen him with it in 2020. He also recognized the sheath for the knife that was found at the scene.

33Mr. O’Flaherty testified that he and Mr. Acquaviva discussed the dangers of drug purchasing even for small time dealers. If they were making bigger purchases they would sometimes go together. Mr. O’Flaherty testified that Mr. Acquaviva would sometimes bring the knife for protection when doing drug deals.

34Mr. O’Flaherty testified that he did not know Mr. Acquaviva to own a gun. One day after a couple of drinks Mr. Acquaviva joked about getting a gun. Mr. O’Flaherty said that he knew guns could be purchased in the same way they purchased drugs, through Instagram or Snap Chat but it would cost a lot of money, between $2,000 and $10,000.

Isaiah Goodman:

35In February 2022, Mr. Goodman was 20 years old. He testified that in February of 2022 he was not working and was supporting himself by selling drugs. He first started selling drugs when he ran away from his foster home at 14 years old.

36In January 2022 he was running his drug business in Timmins. He would leave Toronto and spend two weeks or sometimes months out of town at a time. His drug business involved selling fentanyl, crystal methamphetamine, cocaine and crack cocaine. On this occasion he came back from Timmins on January 31. He had a court date on February 1 and a meeting with his social worker.

37Mr. Goodman has a fairly lengthy youth and adult criminal record. On February 1, 2022 the day Mr. Goodman shot Anthony Acquaviva he was convicted in Windsor of theft under $5000 and received a suspended sentence and 12 months probation with credit for 9 days in pre-trial custody.

38Mr. Goodman described Joshua Farmer as his best friend. They met when they were 13 years old. Mr. Goodman also described Jermaine Andrews as one of his best friends. He met him when he was 14 years old. They lived in the same neighbourhood and had mutual friends. Mr. Goodman testified that J.B.G. was like a little brother to him though they are not blood related. They met when Mr. Goodman was 16 years old. In February 2022, J.B.G. was just 17 years old.

39In 2021, Mr. Goodman met and started dating a woman named Deanna Hynes. In February 2022 they were not together but they still spoke to each other “here and there”.

40Mr. Goodman testified that he always carried a gun for protection. In October of 2019 when he was 18 years old, Mr. Goodman was shot six times in the hallway of an apartment building in Toronto. After he recovered, he obtained the gun he used to shoot Mr. Acquaviva. The gun was a replica 9 mm Glock 19 which was 3d printed. Mr. Goodman took the gun from J.B.G. in December 2021 and by February 2022 still owed him $2,000 for it.

41Mr. Goodman testified that he went to Markham on the night of February 1, 2022 to sell this gun to Mr. Acquaviva. The arrangements were made by J.B.G. Mr. Goodman was told that there was a “kid out in Markham” looking to buy a gun for $5,000. He didn’t ask J.B.G. for details about who the person he was selling the gun to was or the specific location of the transaction. He testified that he trusted J.B.G. to “cover all the bases” and “vouch for the kid.”

42Mr. Goodman testified that it was his intention to hand over the gun to a person he did not know while it was loaded with 32 bullets once he had the money in hand.

43Mr. Goodman wanted to sell the gun because in addition to the $2,000, he owed J.B.G. another $1,600 for fentanyl. He thought he could pay him back and make some money. In cross-examination, when asked why he didn’t pay J.B.G. back with some of the $8,000 he had in cash on the night he set out to sell the gun, he stated that he simply wanted to take the opportunity to make a profit off the gun.

44Mr. Goodman was told that there was an opportunity for him to purchase another gun to replace the one he was going to sell. This deal was supposed to take place at a movie theatre in Scarborough that same night.

45Mr. Goodman was with Mr. Farmer and Mr. Andrews when they picked up J.B.G. around 5:00 p.m. Mr. Andrews was driving. Mr. Farmer was in the front passenger seat. Mr. Goodman sat behind Mr. Farmer and J.B.G. was in the rear driver’s side.

46Mr. Goodman made a video of himself holding the gun. Mr. Goodman testified that he made the video because his generation tends to video everything they are doing. He did not intend to send it, and did not send it, to anyone. It was not posted on social media. Mr. Goodman agreed that in the video J.B.G. could be heard saying the word “Yute”. He denied they were referring to Mr. Acquaviva or the person they were going to do the gun deal with.

47Mr. Goodman understood that the plan was to buy the new gun in Scarborough and then head to Markham to sell his gun. While they were travelling on the DVP, Mr. Goodman was on the phone as they passed the exit to head to Scarborough. J.B.G. told him that the “kid” in Markham couldn’t meet later so they had to head there now.

48When they got to the area in Markham where the deal was supposed to happen, Mr. Goodman thought it odd that a gun deal would take place in a neighbourhood. Mr. Goodman got out of the car. He did not bring the gun. He left the gun in the car because he wanted to be sure the person he was selling the gun to was not an undercover police officer. As he got out of the car, he saw a person walking in the middle of the street. This person turned out to be Anthony Acquaviva.

49Mr. Goodman testified that gun deals are supposed to be speedy and smooth particularly if they involve someone you don’t know. He agreed that gun deals are highly dangerous.

50When they got close, Mr. Acquaviva “hailed him up”. This means they greeted each other with a handshake of sorts. Mr. Acquaviva gave Mr. Goodman the “Rexall” bag. Mr. Goodman testified that he found it odd that Mr. Acquaviva had the paper bag, he thought it was cash and wondered why Mr. Acquaviva wasn’t keeping it hidden. In the bag, Mr. Goodman observed two white bags and a baby bottle of “Lean”. Mr. Goodman was confused because he did not know drugs were supposed to be part of this deal.

51Nonetheless, Mr. Goodman asked Mr. Acquaviva about the “Lean”. Mr. Goodman agreed to purchase it from Mr. Acquaviva for $550. According to Mr. Goodman, Mr. Acquaviva asked him if he was “T’s” cousin. Mr. Goodman pointed to J.B.G. as he didn’t know “T” and assumed this was something J.B.G. and Mr. Acquaviva wanted to discuss. To allow them to talk, Mr. Goodman got back into the back seat of the car. Mr. Acquaviva asked to speak to J.B.G.

52Mr. Goodman told Mr. Farmer that everything was “bless” and to turn the car around. J.B.G. and Mr. Acquaviva were walking away from the car talking. Mr. Farmer had Mr. Goodman’s phone. Also in the car was Mr. Goodman’s Adidas “fanny pack” which had roughly $8,000 in it.

53Mr. Farmer pulled the Malibu alongside and slightly in front of the Cruz. Mr. Goodman was still in the car. He noticed that Mr. Acquaviva and J.B.G. were between the two cars. He also noticed that there was a female in the driver’s seat of the Cruz.

54Mr. Goodman got out of the car. Mr. Acquaviva asked him if he had the “nine”. Mr. Goodman asked Mr. Acquaviva if he had the “bread”, saying he was not going to hand over a gun without seeing the money. Mr. Acquaviva pointed to the brown bag. Mr. Goodman testified that threw him off. J.B.G. also gave him a confused look. The gun was in Mr. Goodman’s right jacket pocket.

55While this back and forth was taking place, Mr. Acquaviva was about an arm’s length away from Mr. Goodman. They were facing each other. J.B.G. was right beside Mr. Goodman. Mr. Goodman reached towards Mr. Acquaviva’s waist band to see if he had a gun. Mr. Goodman testified that Mr. Acquaviva jumped back and put his hand inside the chest area of his jacket. Mr. Goodman saw a flash of silver.

56Mr. Goodman took out his gun and fired the first two shots. He assumed Mr. Acquaviva came to the gun transaction prepared with his own gun. As he was firing he was backing up. He didn’t see where J.B.G. went. Mr. Acquaviva ran around the car. Mr. Goodman saw the Cruz back up. He fired the gun twice more. He kept looking over his shoulder wondering where J.B.G. went. When he turned back he saw Mr. Acquaviva pop up near the snowbank so he fired his last shot and ran around the corner.

57Mr. Goodman testified that he fired the gun to protect himself. He kept firing as he was moving backwards to give himself distance from what he thought was a gun. Mr. Goodman testified that he did not mean to shoot Mr. Acquaviva nor did he mean to kill him.

58Mr. Goodman agreed that up to the point he thought he saw a flash of silver Mr. Acquaviva was not behaving aggressively in any way. Mr. Goodman assumed that Mr. Acquaviva had a gun even though he was there to purchase one only because he walked over to them by himself when he initially approached their car.

59At no point did Mr. Goodman see any part of a gun, it was just a flash of silver. Mr. Goodman’s immediate reaction to the flash of silver was to pull his own gun and fire it.

60Mr. Goodman testified that he did not shoot directly at Mr. Acquaviva but just shot in his direction as Mr. Goodman was moving backwards. He was not aiming at him. It was just a “blind fire.” If he had wanted to shoot him, it was Mr. Goodman’s evidence that he would have done so given how close they were to each other. He was just trying to scare him and put distance between them.

61Mr. Goodman testified that after the fourth shot, Mr. Acquaviva popped up from the snowbank and he believed he was walking towards him. He fired the fifth and final shot to get around the corner. It was Mr. Goodman’s evidence that he did not feel he had any other option even at this point. Although Littleleaf Crescent was wide open, he chose to back up so he couldn’t have run down Littleleaf Crescent.

62At no point did he see or hear anyone else shooting.

63Mr. Goodman agreed in cross-examination that after he saw Mr. Acquaviva pop up from the snowbank, he took a couple of steps towards him even though he was afraid he might get shot.

64When Mr. Goodman went back to the Malibu, he saw Mr. Acquaviva who said “don’t shoot, don’t shoot.” In cross-examination, Mr. Goodman testified that he assumed based solely on the fact that Mr. Acquaviva had walked by himself up the road to their car to a do a gun transaction, he would have something on him to protect himself. This belief was based on his own experience selling guns.

65When he fired at Mr. Acquaviva five times, he was only doing so because he saw a flash of silver and was trying to create some distance for himself. He agreed that despite not seeing a gun in Mr. Acquaviva’s hand and only having seen a flash of silver as Mr. Acquaviva reached into his jacket, he concluded Mr. Acquaviva had a gun because in his experience, a person buying a gun would not come to a gun deal without one.

66Mr. Goodman agreed in cross-examination that when the gun deal was not going as quickly and smoothly as he would have expected, for example, at the car when Mr. Acquaviva produced the paper bag of drugs, not money, and beside the Cruz when Mr. Acquaviva pointed to the bag as payment for the gun he could have called off the deal and walked away.

67In cross-examination, the Crown produced the coat Mr. Acquaviva was wearing that night. Mr. Goodman agreed that the pocket from which he saw the flash of silver was not deep enough to fit the knife or the knife in its sheath.

68After the shooting, Mr. Goodman saw that the Malibu was stuck in the snowbank. He saw Mr. Farmer trying to push on the front of the car. J.B.G. ran away. Mr. Goodman tried to push the car as well. The car would not move so they all took off running except for Mr. Andrews who said “it’s my car and I’m staying.”

69Mr. Goodman saw Mr. Farmer get hit by Ms. Acquaviva’s car. He did not stay to offer assistance because he was scared.

70Mr. Goodman ran to a forest. He made it out of the area. After asking people for help to no avail, Mr. Goodman walked to Toronto. He made it to his friend Deanna Hynes’ house at St. Clair and Dufferin.

71When Mr. Goodman learned through the media that Mr. Acquaviva had died, he decided not to go to the police and tell them he was acting in self-defence because he was a young black man and didn’t think he would be believed.

72In the days after the shooting, Mr. Goodman used an old phone of Ms. Hynes’ as his had been left at the scene. At some point he got his own SIM card for it. His plan was to leave Toronto. He still had the gun used in the shooting with him. Ms. Hynes was not happy about this and encouraged him to get rid of it. Arrangements were made to deposit the gun with someone in Brampton.

73In a text conversation with Ms. Hynes, Mr. Goodman learned that he was being accused of setting up J.B.G. and that J.B.G. was in jail because of him. Mr. Goodman also learned that J.B.G. said it was his fault that everything went wrong. Mr. Goodman responded to that comment with a text message that read “how is it my fault – ok so I should have let the yute do whatever to J7 what do you mean”. Mr. Goodman testified that this meant he was protecting J.B.G. from Mr. Acquaviva.

74Mr. Goodman was arrested on February 10, 2022. He gave a statement to the police that was not truthful. He told the police he was up north on February 1, 2022. He also told them he did not own a weapon. He lied to the police about knowing the identity of the other people in the car with him that night. He did so because he didn’t want to be labelled a “rat.” He said he was telling the officer whatever he could to better his situation. He agreed his lies were detailed as to times, places and locations because he wanted to sound believable.

The Video Surveillance:

75Most of the pertinent events leading up to, during and after the shooting are captured on various video cameras from the neighbourhood. A video compilation was prepared from these recordings.

76The video compilation reveals the following:

• At 6:39 p.m. Anthony and Sabrina Acquaviva pulled up in the Cruz and parked in front of a house near 14 Purple Finch Road. They were passed by the Malibu which proceeded to park just off Purple Finch Road on Serviceberry Road.

• Still at 6:39 p.m. Mr. Acquaviva got out of the Cruz and walked over to the Malibu.

• Mr. Acquaviva was initially greeted at the front of the Malibu by who is admitted to be Mr. Goodman. They were joined almost immediately by who is admitted to be J.B.G.

• At 6:40:25 p.m. Mr. Goodman placed something on the hood of the Malibu while Mr. Acquaviva and J.B.G. continued to speak.

• The three of them appeared to be in discussion until Mr. Goodman got back in the Malibu at 6:41:02 p.m.

• At 6:41:10 p.m., J.B.G. and Mr. Acquaviva began to walk away from the Malibu back towards the Cruz. The lights on the Malibu turned on and the Malibu was put in motion.

• Mr. Acquaviva and J.B.G. paused briefly in discussion at 6:41:23 p.m. and then continued to walk towards the Cruz.

• The Malibu paused beside Mr. Acquaviva at 6:41:42 p.m. until 6:41:52 p.m.

• The Malibu parked beside and slightly in front of the Cruz at 6:41:58 p.m.

• At 6:42:23 p.m., what must be Mr. Acquaviva’s shadow started moving quickly near the back passenger door of the Malibu. Almost immediately at 6:42:24 p.m. two gunshots can be heard one right after the other.

• A third gunshot is heard at 6:42:27 p.m. When the third gun shot is heard, Mr. Acquaviva had moved to the rear bumper of the Cruz as the Cruz began to move. Mr. Acquaviva was still on his feet.

• As the Cruz pulled forward between 6:42:27 p.m. and 6:42:29 p.m. there was a fourth gun shot.

• At 6:42:29 p.m., the time of the fourth gun shot, Mr. Acquaviva was running behind the Cruz being driven by his sister. Ms. Acquaviva pulled in front of the Malibu in an effort to turn her car around and drive towards Serviceberry Road.

• Mr. Acquaviva appeared to fall to the ground after the fourth shot at 6:42:29 p.m. Mr. Goodman can be seen backing towards Serviceberry Road. Mr. Acquaviva was on the ground getting up when Mr. Goodman fired the fifth and final shot at 6:42:35 p.m. It appears as he is scrambling, between the fourth and fifth shots that Mr. Acquaviva has something in his hand.

• At 6:42:37 p.m. the Malibu tried to drive away but got stuck in the snowbank. Ms. Acquaviva, having executed a three-point turn by 6:42:39 p.m. began to drive in the direction of Mr. Goodman towards Serviceberry Road.

• At 6:42:46 p.m. Mr. Acquaviva was captured running around the corner of Purple Finch Road onto Serviceberry Road in the direction his sister had driven.

• Fourteen seconds later, at 6:43:00 p.m., the video surveillance shows Mr. Goodman in the same location running the opposite way.

• Mr. Farmer, Mr. Andrews and J.B.G. attempted to free the Malibu from the snowbank. At 6:43:06 p.m. Mr. Goodman joined them near the Malibu. At 6:43:15 p.m., Mr. Goodman, J.B.G. and Mr. Farmer ran down Purple Finch Road away from the Malibu.

• At 6:43:26 p.m. Ms. Acquaviva returned to the scene driving rapidly and ran into Mr. Farmer who flew through the air.

• The rest of the video surveillance tracks the whereabouts of Mr. Goodman who is ultimately seen in the parking lot of a plaza asking a person in a vehicle for assistance at 7:16 p.m.

The Position of the Parties:

77The Defence submits that I should accept Mr. Goodman’s version of events that this was a planned gun deal and that Mr. Goodman was acting in lawful self-defence when he shot Mr. Acquaviva. Mr. Acquaviva put his hand into his jacket revealing a “flash of silver”. This is supported by the fact that the sheath for Mr. Acquaviva’s knife was found at the scene of the shooting and the knife itself was in Mr. Acquaviva’s possession when he got into his sister’s car after the shooting.

78The Defence theory that this was a planned gun deal is also supported by the fact that Mr. Acquaviva had talked about buying a gun to Mr. O’Flaherty. The Defence submits that Mr. Acquaviva had also talked about getting a gun with his sister, though she denies this. Ms. Acquaviva would not have warned her brother about the dangers of carrying a gun unless he had brought it up to her. The photos of guns in Mr. Acquaviva’s phone show that he clearly had an interest in firearms.

79It is the Defence position that it makes no sense for Mr. Goodman to have attempted to steal such a small quantity of marijuana products and “Lean” because Mr. Goodman’s drug dealing enterprise involved cocaine, fentanyl, crack cocaine and crystal methamphetamine. He had $8,000 between the cash in the car and on his person that night. Mr. Goodman’s version of events that he was trying to make some cash by selling a gun in a gun deal set up by J.B.G. who he trusted, makes sense.

80The fact that Mr. Acquaviva was acting nervous and out of character on February 1 also supports the theory that this was different than his usual marijuana drug deals.

81It is the position of the Defence that had this been a planned robbery, it would have happened in the 56 seconds that Mr. Goodman, J.B.G. and Mr. Acquaviva were negotiating near the Malibu. Further, nothing was taken from Mr. Acquaviva’s car or from his sister as she sat in the Cruz. If the plan had been to rob them, it is the position of the Defence that any valuables including those from Ms. Acquaviva would have been taken.

82In closing submissions, the Defence demonstrated that it was possible for the knife in its sheath to be held in the inside pocket of Mr. Acquaviva’s coat, although only about half of it actually fit inside the pocket.

83The Defence submits that Ms. Acquaviva was not a reliable witness and parts of her testimony were not credible. She did not initially tell the police that she had accompanied her brother on other occasions where he was selling “dab pens.”

84It is the Defence position that Ms. Acquaviva was confused about the conversation between Mr. Acquaviva and Mr. Goodman. When she heard “60” and “90” she must have misheard the street slang for gun “stick” and “nine” for nine mm, the calibre of the gun.

85This was a very dynamic, unusual and stressful situation for Ms. Acquaviva to witness. She was mistaken about the number of gun shots, thinking it was ten rather than five.

86Ms. Acquaviva is mistaken about believing J.B.G. got back into the Malibu after he and Mr. Acquaviva walked south down Purple Finch Road. Ms. Acquaviva is mistaken about seeing her brother put his hands up as she is traumatized and riddled with guilt for having brought him there. Ms. Acquaviva is also mistaken about her evidence that Mr. Acquaviva was bleeding from both his mouth and his chest. He was not bleeding from his chest.

87The Defence submits that Ms. Acquaviva’s evidence about the knife defies logic and common sense. The only reason Ms. Acquaviva would have asked her brother if he “had anything on him” is because she had seen the knife. Her evidence that she didn’t look at what Mr. Acquaviva handed her in the car also does not make sense. Ms. Acquaviva is not being truthful about knowing her brother had a knife to protect his image and lessen his culpability.

88The Defence submits that I should accept Mr. Goodman’s evidence that as he ran back to the Malibu after the shooting he ran past Mr. Acquaviva who asked him not to shoot. If he had intended to kill Mr. Acquaviva, Mr. Goodman would have done so at that point. He still had 27 bullets in the gun.

89The Defence maintains that Mr. Goodman’s version of events as to why he continued to fire the gun after the first two shots makes sense. Mr. Acquaviva was still on his feet. After the fourth shot, Mr. Acquaviva popped up from the snowbank and appeared to Mr. Goodman to advance towards him.

90Finally, the Defence submits that Mr. Goodman’s text to Ms. Hynes corroborates his version of events that he was trying to protect himself and J.B.G. when he shot Mr. Acquaviva.

91The Crown submits that I should reject the evidence of Mr. Goodman and not be left in a reasonable doubt by it. I should accept the evidence of Ms. Acquaviva that when Mr. Goodman pulled out his gun and fired at her brother, Mr. Acquaviva had his hands up and was stepping backwards. He did not reach into his jacket and before he was shot at did not have a knife in his hands. Therefore, there was no catalyst or threat that would justify Mr. Goodman shooting Mr. Acquaviva. The Crown has disproven self-defence.

92Mr. Goodman was not a credible witness. He lied to the police. His lies were detailed and extensive. He was able to make up involved stories as the police questioned him. In other words, he is a skilled liar.

93Mr. Goodman has also demonstrated his willingness to lie in court by promising a judge that very morning that he would “keep the peace and be of good behaviour” and then immediately arming himself to conduct a drug or gun transaction while in his first hours of probation. Mr. Goodman has a demonstrated record for crimes of dishonesty in his convictions for breaches of court orders.

94The Crown submits that Mr. Goodman was an evasive witness who gave rambling or non-responsive answers in cross-examination. He was reluctant to agree with obvious suggestions and didn’t want to answer difficult questions.

95In the Crown’s submission, Mr. Goodman’s evidence is not consistent with the video surveillance. In particular, it is clear from the video that Mr. Acquaviva did not advance at any point towards Mr. Goodman. Mr. Goodman fired the fourth shot while Mr. Acquaviva was facing away from him in motion towards the Cruz. This is consistent with the physical evidence that Mr. Acquaviva was shot in the flank. As he was shot in the back, Mr. Goodman’s assertion that he continued to shoot Mr. Acquaviva after the third shot in self-defence cannot be true.

96After the fourth shot, Mr. Acquaviva fell to the ground, presumably having been hit and then “popped up” from the snowbank. He was then crawling into the road and chasing after the Cruz at same time as the fifth shot was fired. Mr. Goodman was not going north when this shot was fired. He was advancing towards Mr. Acquaviva. The first time the knife is visible is after the shooting started. When Mr. Acquaviva is scrambling to get away before the fourth shot, the Crown submits that there is nothing visible in his hand. As Mr. Goodman’s evidence is inconsistent with the video then it cannot be true.

97Mr. Goodman’s evidence that he was firing blindly and not trying to shoot Mr. Acquaviva defies logic and common sense. If he believed Mr. Acquaviva was reaching for a gun to shoot him, he would have intended to shoot Mr. Acquaviva first.

98The Crown maintains that Mr. Goodman’s evidence is internally inconsistent and therefore incapable of belief. Mr. Goodman testified that gun deals are very dangerous transactions particularly with people that are unknown, yet he asked no questions of J.B.G. about the deal he had brokered or the person he was negotiating with.

99If Mr. Goodman needed money to pay J.B.G. back, he had the money in the car that night. He was about to use the profits from selling his gun to Mr. Acquaviva to buy another gun. After he paid back J.B.G. as was his intention, he would be no further ahead. Also, he had the money to pay back J.B.G. There was no need to conduct two risky gun transactions.

100The Crown submits that Mr. Goodman’s testimony that he believed Mr. Acquaviva must be armed based solely on the fact that he walked towards them alone is not true. If it is true, this assumption is not subjectively or objectively reasonable. Mr. Goodman’s evidence that if he had intended to shoot Mr. Acquaviva he would have given their proximity to each other is also not true. It is clear from the video that Mr. Acquaviva was a moving target.

101With respect to the text message the Defence relies on to corroborate Mr. Goodman’s testimony, the Crown submits that there is not enough context to rely on it as corroboration. The text makes no mention of Mr. Goodman shooting to protect himself, only J.B.G.

102The Crown submits that Ms. Acquaviva was a credible and reliable witness and that I should accept her evidence. If I accept her evidence that just prior to the shooting, Mr. Acquaviva had his hands up and was backing away, Mr. Goodman cannot avail himself of self-defence.

103Ms. Acquaviva was looking right at her brother from a very close distance with the car window rolled down. If he had reached into his pocket she would have seen it. The Crown submits that the “60” and “90” she heard were related to a drug deal negotiation. Although she was not sure about which numbers were discussed, she was sure that they mentioned two numbers, not a “stick”.

104In terms of her observations of her brother once he was bleeding, this was not a material point and her observations took place in a very dynamic situation, one in which she was driving and running into Mr. Farmer. Ms. Acquaviva asking her brother if he had anything to protect them does not mean she is lying about having seen a knife previously. It was an understandable question with the perpetrators still at large.

105The Crown submits that Ms. Acquaviva’s evidence that she wanted to run over the shooter and wanted to make sure whoever did this didn’t get away with it was an admission against interest that underscores Ms. Acquaviva’s credibility. She could have easily denied running into Mr. Farmer intentionally. It was dark. The roads were slippery. Her brother had just been shot. She wanted to get him help. She was fearful.

106The Crown submits that the evidence as a whole supports the theory that Mr. Acquaviva believed this meeting to be a drug deal and that Mr. Goodman and his friends came there with the intention of robbing him.

The Law and Analysis:

107The primary and overarching principle in every criminal trial is the presumption of innocence. This is the most fundamental principle of our criminal justice system. To be presumed innocent until proven guilty by the Crown is the fundamental right of every accused person.

108An important element of the presumption of innocence is the standard of proof required to displace that presumption. The onus is upon the Crown, on the totality of the evidence, to prove the offence beyond a reasonable doubt, in order for the Defendant to be found guilty of the offence charged.

109A verdict should not be based on a choice between the Defendant's and Crown's evidence, but on whether, based on the whole of the evidence, the Court is left with a reasonable doubt as to the Defendant's guilt.

110Mr. Goodman is charged with second degree murder. Culpable homicide under s. 229 of the Criminal Code is murder:

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being;

111Section 231(7) of the Criminal Code sets out that "All murder that is not first-degree murder is second degree murder". Section 234 of the Criminal Code provides that "Culpable homicide that is not murder is infanticide or manslaughter".

112Mr. Goodman testified. The parties agree that I must be instructed by the principles in R. v. W.D., 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26. Mr. Goodman does not deny that he shot and killed Mr. Acquaviva. It is his position that he did so in self-defence. Therefore, a modified W.(D.) analysis is required because self-defence contains an objective component. R. v. Reid, (2003), 2003 CanLII 14779 (ON CA), 65 O.R. (3d) 723 (C.A.) at para. 72. If I accept the evidence of Mr. Goodman and on the basis of it believe or have a reasonable doubt that he was acting in lawful self-defence I must find him not guilty. Even if I do not accept his evidence, if, after considering it alone or in conjunction with the other evidence, I believe or have a reasonable doubt that he was acting in lawful self-defence I must find him not guilty.

113The defence of self-defence requires that Mr. Goodman’s response to the situation he was facing be measured against the response expected of a reasonable person in the same situation. R. v. Ryon, 2019 ABCA 36. I must consider his evidence and any evidence that favours him as a whole. Even if I reject his evidence and find that it does not raise a reasonable doubt, I must be satisfied of his guilt beyond a reasonable doubt on the evidence I do accept.

114When self-defence is raised, the burden is on the Crown to satisfy me beyond a reasonable doubt that Mr. Goodman was not acting in self-defence. He does not have the onus of establishing he was acting lawfully.

115Section 34 of the Criminal Code codifies the law of self-defence. It reads as follows.

34.(1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

116The Supreme Court of Canada in R. v. Khill, 2021 SCC 37 recently interpreted and considered the meaning of the self-defence provisions in the Criminal Code of Canada holding at para. 51, that the three inquiries under s. 34 (1) can be conceptualized as:

1. the catalyst;

2. the motive; and

3. the response.

117The question to be considered with respect to the catalyst is whether the accused believed on reasonable grounds that force was being used or threatened against them or another person. If the accused did not subjectively believe that force or a threat of force was being used against them or another person, the defence is unavailable. Khill, para. 52. The accused belief must be held on reasonable grounds. This “incorporates community norms and values in weighing the moral blameworthiness of the accused’s actions.” Khill para. 53 and R. v. Cinous, 2002 SCC 29 at para. 121. The test for reasonableness of an accused’s belief is understood to be a blended or modified objective standard. The accused’s belief was traditionally assessed from the perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused. Khill at para. 54.

118Not all personal characteristics or experiences are relevant to the modified objective inquiry. “Reasonableness is not considered through the eyes of individuals who are … members of criminal subcultures.” Khill at para. 56; Reilly v. The Queen, 1984 CanLII 83 (SCC), 1984 2 S.C.R. 396 at p. 405; Cinous at para. 129-130; and R. v. Phillips, 2017 ONCA 752 at para. 98.

119An honest but mistaken belief can be reasonable and does not automatically bar a claim to self-defence. Khill at para. 57; R. v. Lavallee 1990 CanLII 95 (SCC), [1990] 1 S.C.R 852 at p. 874; R. v. Pilon 2009 ONCA 248 at para. 74; and R. v. Cunha, 2016 ONCA 491 at para. 8.

120The question to be considered with respect to the motive is whether the accused did something for the purpose of defending or protecting themselves or another person from that use or threat of force. This second element of self-defence considers the accused’s purpose in committing the act. The accused must have undertaken the act to defend or protect themselves or another from the use or threat of force. This is a subjective inquiry. If there is no defensive or protective purpose, the rationale for self-defence does not exist. Khill, para. 59; Brunelle v. R, 2021 QCCA 783 at paras 30-33; and R. v. Craig, 2011 ONCA 142 at para. 35.

121The question to be considered with respect to the response is whether the accused’s conduct was reasonable in the circumstances. The reasonableness inquiry operates to ensure that the law of self-defence conforms to community norms of conduct. By grounding the law of self-defence in the conduct expected of a reasonable person in the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon. Khill, at para. 62.

122Reasonableness should be measured according to "the relevant circumstances of the person, the other parties and the act". This includes how the act happened and the role each person played. It modifies the objective standard to take into account characteristics of the accused including certain experiences of the accused. Khill, at para. 63. This can also include any mistaken beliefs reasonably held by the accused. If the court determines that the accused believed wrongly, but on reasonable grounds, that force was being used or threatened against them, that finding is relevant to the reasonableness inquiry under the response inquiry. Khill at para. 66.

123In R. v. Pilon, 2009 ONCA 248, Justice Doherty discussed at some length the notion of reasonableness under the former s. 34(2). He emphasized at para. 73 that "[r]easonableness connotes a community standard against which the actions of individuals within the community can be measured." The reasonableness inquiry is not purely objective, as "the jury must consider the relevant circumstances as the accused perceived those circumstances. The jury then tests that perception against the community standard of reasonableness" at para. 74. Justice Doherty stated at para. 75:

I see a world of difference, however, between testing the reasonableness of an accused's apprehension and belief in the circumstances as the accused perceived them and testing the reasonableness of that apprehension and belief in light of the appellant's personal moral code or world view. It may well be, given the criminal sub-culture in which the appellant operated, that he lived by the motto "kill now or be killed later". In assessing the reasonableness of the appellant's conduct, however, the jury cannot accept that motto. To do so would be to effectively eliminate the "reasonableness" requirement from the defence of self-defence. Instead of reflecting community values and the community perception of when a killing is justified, the validity of the self-defence justification would lay entirely in the eye of the killer. A law of self-defence that justified what would otherwise be murder entirely on the basis of the accused's personal belief as to the need to kill to save himself would constitute a stunning devaluation of the rights to life and security of the person to which all members of the community are entitled.

124In addition to the abovementioned legal factors, when assessing the evidence, I must "pay close attention to the entire factual context". R. v. Cunha, 2016 ONCA 491 at para. 10. I must not "parse" the reactions of Mr. Goodman to the split second. In considering the reasonableness of the use of force, I must recall that "people in stressful and dangerous situations do not have time for subtle reflection.” Cunha, at paras. 24 and 25. As this was a dynamic and fast-paced encounter, I should not view it on a frame-by-frame basis. R. v. Quinn, 2014 ONCA 650 at para. 10.

The Credibility and Reliability of Mr. Goodman’s Evidence:

125Mr. Goodman has both a youth and adult criminal record. Between 2016 and 2019 he was found guilty of six counts of breaching court orders. On six occasions he made a promise to the Court and then was proven beyond a reasonable doubt to have broken that promise. On the day of the shooting, he was sentenced to probation. On the heels of that sentencing, he armed himself with a gun and on his evidence set out with his companions to conduct two gun transactions. Suffice it to say, in the past, the solemnity of the Court process appears to have meant very little to him. This does not, however, factor greatly in my assessment of his testimony.

126I have not relied on Mr. Goodman’s criminal record to reason that he is the type of person who would commit the offence charged. The fact is that he is an admitted criminal who, in the context of criminal conduct was involved in an incident that led to someone's death. That reality does not mean that it is more likely that he did not act in self-defence or more likely that he was the aggressor.

127Mr. Goodman repeatedly lied to the police about the events of February 1, 2022. He provided detailed lies about his whereabouts that day and in the days leading up to the shooting. Mr. Goodman also made plans after the shooting to dispose of the gun and to leave town for a while.

128The Crown submits that this after the fact conduct evidence can assist me in determining the credibility of Mr. Goodman’s claims of self-defence. I agree. However, I must be mindful not to jump to a conclusion of guilt based on how Mr. Goodman acted after the shooting. A trier of fact must carefully consider alternative explanations for the conduct including panic, embarrassment, fear of false accusation or some other innocent explanation. R. v. Calnen, 2019 SCC 6 at paras. 29 and 111; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at pp. 143-146; and R. v. Zaban, 2024 ONSC 1943 at para. 25.

129In this case, I accept Mr. Goodman’s evidence that he did not think he would be believed that he was acting in self-defence. He was a young racialized man who had been entrenched in a criminal lifestyle with criminal associates for many years. The events took place in the context of an illegal transaction to which he brought a loaded gun. In my view, there are alternative explanations to guilt for wanting to leave town and lying to the police.

130Shortly before travelling to the scene of the shooting, Mr. Goodman recorded a video of himself showing off his firearm. The admissibility of this video clip was the subject of a pre-trial motion in which I determined its probative value outweighed its prejudicial effect.

131In those reasons, I explained that as this trial proceeded without a jury, the risk of moral or reasoning prejudice was small. This evidence may not be used to determine that because Mr. Goodman is the type of person to have a firearm and display it to the camera he must have been the aggressor in the interactions with Mr. Acquaviva and/or he must have gone there with the intention of robbing Mr. Acquaviva.

132The video was made approximately an hour before the shooting in the Malibu that was driven to the scene. J.B.G. can be heard saying something about a “yute” while Mr. Goodman points the gun at the camera. Although this is some evidence about his state of mind shortly before he arrived at the scene, having seen the photos of Mr. Acquaviva posing with money and drugs, the photos of guns on his phone and heard the testimony of Mr. O’Flaherty that this is not an uncommon practice, I place no weight on the video in assessing the credibility of Mr. Goodman.

133Mr. Goodman’s evidence was internally inconsistent. On the one hand Mr. Goodman testified about the serious nature of gun dealing and how very dangerous it is. Yet he was prepared to deal a gun to a complete stranger in an unfamiliar area on the very scant information provided to him by J.B.G. Mr. Goodman had been shot six times in 2019. This was his explanation for always arming himself with a firearm. He was understandably profoundly affected by this. His evidence that he would do a gun deal in these circumstances does not fit with his testimony about the safest way to do a gun deal. Further, Mr. Goodman testified that he believed Mr. Acquaviva was armed as soon as he saw him walking down the street alone. Mr. Goodman testified that he left his gun in the car to ensure Mr. Acquaviva was not an undercover officer. If Mr. Goodman was worried about Mr. Acquaviva, a stranger, being armed he would not have left the gun in the car.

134Mr. Goodman’s evidence about why he wanted to sell his gun was confusing and shifted over time. At first he testified that he needed the money to pay J.B.G. back and wanted to make a profit of $1,400. Mr. Goodman then testified that he didn’t need to rob Mr. Acquaviva because he had $8,000 in cash in the car and on his person that night. $7,000 of this cash was found in the Malibu by the police. Mr. Goodman also testified that he was going to use the profit to buy a new gun that night because he would not want to be without a gun. He was going to purchase the new gun for $3,500. Mr. Goodman would have to have shown up at the second gun deal unarmed, something he testified he would not want to do. Although he explained that the order of gun deals was switched up without his input, going through with the first one in the circumstances he found himself in contradicts his testimony about best practices given the inherent danger in dealing guns.

135There is some evidence to support Mr. Goodman’s assertion that this was a planned gun deal. Mr. Acquaviva had spoken about buying a gun to Mr. O’Flaherty. Mr. Goodman did not normally deal in small drug transactions as evidenced by the amount of money he had with him that night.

136However, I have difficulty accepting Mr. Goodman’s version of events that this was a planned gun deal. Mr. Acquaviva brought his sister to the meeting. Mr. O’Flaherty testified that drug dealing can be dangerous. If he and Mr. Acquaviva were buying larger amounts and more money was involved, they would go together for protection. Mr. Acquaviva had brought his sister to transactions involving people in the neighbourhood before. It makes little sense that he would have intentionally involved his sister in a gun deal.

137The evidence of Ms. Acquaviva about the nature of the conversation between Mr. Acquaviva and Mr. Goodman beside her car also lends some support to the theory that Mr. Acquaviva thought this was a drug deal.

138Most importantly, Mr. Goodman left his gun in the car when initially speaking to Mr. Acquaviva. Mr. Acquaviva handed over a bag of his usual product to Mr. Goodman. Finally, Mr. Acquaviva had no cash on him or in his car with which he could purchase a gun.

139As I will discuss later, however, it is not critical to my ultimate finding why the parties met up that night. These are factors that I have considered for the purpose of assessing the veracity of Mr. Goodman’s version of events.

140Although the sheath for the knife was found at the scene of the shooting, it is not contentious that at some point Mr. Acquaviva took out his knife. The knife is only visible on the video surveillance after the shooting started. For reasons I will discuss, I accept Ms. Acquaviva’s evidence that at the time the first shots were fired, Mr. Acquaviva did not have a knife in his hand. His hands were up and he was moving backwards.

141In a text conversation with Ms. Hynes, Mr. Goodman learned that he was being accused of setting up J.B.G. and that J.B.G. was in jail because of him. Mr. Goodman also learned that J.B.G. said it was his fault that everything went wrong. Mr. Goodman responded to that comment with a text message that read “how is it my fault – ok so I should have let the yute do whatever to J7 what do you mean”. Mr. Goodman testified that this meant he was protecting J.B.G. from Mr. Acquaviva. I accept the argument of the Defence that on its face, this is consistent with Mr. Goodman’s position in his testimony. However, I agree with the Crown that the text conversation lacks context. The text from Ms. Hynes relays second hand information about the thoughts of J.B.G. Without further context, I don’t know what J.B.G. was referring to when he made those comments to a third party who relayed them to Ms. Hynes.

142The biggest issue with Mr. Goodman’s version of events is that it is contradicted by the video surveillance on critical points.

143At 6:42:23 p.m., what must be Mr. Acquaviva’s shadow moved quickly near the back passenger door of the Malibu. Almost immediately at 6:42:24 p.m. two gunshots can be heard one right after the other. Mr. Acquaviva was not just standing in front of Mr. Goodman when the first two shots were fired. He had begun to move away from him. It is clear that he was trying to get away.

144The third gunshot is heard at 6:42:27 p.m. When the third gun shot is heard, Mr. Acquaviva was at the rear bumper of the Cruz as the Cruz began to move. He was still on his feet.

145As the Cruz pulled forward between 6:42:27 p.m. and 6:42:29 p.m. Mr. Goodman fired the fourth shot. Although I can’t be certain, it makes sense that this was the shot that hit Mr. Acquaviva because after this shot, he fell to the ground. When the shot was fired, Mr. Acquaviva was facing away from Mr. Goodman and slightly crouching. The bullet that hit him penetrated his flank. At 6:42:29 p.m., the time of the fourth gun shot, Mr. Acquaviva was running behind the Cruz being driven by his sister as she pulled in front of the Malibu in an effort to turn her car around and drive towards Serviceberry Road.

146It is clear from the video that at the time of the fourth shot Mr. Acquaviva was moving away from Mr. Goodman. This directly contradicts Mr. Goodman’s evidence that he still thought Mr. Acquaviva was a threat. Mr. Acquaviva fell to the ground after the fourth shot. Mr. Goodman ran towards Serviceberry Road and was at least one possibly two houses away from Mr. Acquaviva when he walked back towards Mr. Acquaviva who was on the ground getting up and fired the fifth and final shot. Mr. Goodman had run away from Mr. Acquaviva for six seconds when he turned back, walked towards Mr. Acquaviva and fired at him again.

147I cannot accept that Mr. Goodman genuinely feared for his life when he shot Mr. Acquaviva as he was retreating with his back to him and then as he returned six seconds later to shoot at him again.

148I appreciate that this was a dynamic situation and that I must not "parse" the reactions of Mr. Goodman to the split second. However, it is clear from an analysis of the video as a whole that Mr. Acquaviva was always on the defensive and trying to avoid getting shot. It appears that he did not have a weapon in his hand until after the fourth shot. As I will discuss later, I accept the evidence of Ms. Acquaviva that after Mr. Goodman patted down Mr. Acquaviva, he put his hands up and stepped backwards. This contradicts Mr. Goodman’s evidence that Mr. Acquaviva reached into his jacket.

149I therefore reject Mr. Goodman’s evidence as to why he was shooting at Mr. Acquaviva. He was not a credible witness.

The Credibility and Reliability of Ms. Acquaviva’s Evidence:

150Sabrina Acquaviva was in her vehicle with her window down directly beside Mr. Goodman and facing her brother when the shooting began. She was in a position where she could see at close range what was happening. She was right there.

151Ms. Acquaviva testified that right after Mr. Goodman patted down Mr. Acquaviva’s pocket, her brother put his hands up and began walking backwards. If I accept her evidence as truthful, there is no catalyst for self-defence.

152Ms. Acquaviva impressed me as an accurate and truthful witness. Her credibility was not sincerely challenged in cross-examination. The Defence contends that the trauma of the experience has affected her reliability in recalling and recounting the events accurately. With respect to credibility, the Defence submits that Ms. Acquaviva must not be telling the truth about not seeing her brother with a knife that night because she asked him if he had anything on him once he got into the car.

153Most important to my assessment of her credibility is that Ms. Acquaviva admitted that she deliberately ran over Mr. Farmer while speeding down the road with the intention of harming him, a person who she believed to be involved in her brother’s shooting. The fact that Ms. Acquaviva was willing to make this admission against her interest greatly affects my assessment of her credibility. She could have easily denied running into Mr. Farmer intentionally. It was dark. There was a lot of snow on the roads. The roads were slippery. Her brother had just been shot. She had her brother in the car and needed to get him help. She was fearful. She could have plausibly testified that any of these things contributed to or caused her to run into Mr. Farmer. But she admitted what she had done.

154Although she maintained that they were talking about numbers, Ms. Acquaviva was fair in her evidence that she was not sure about the exact words spoken between Mr. Goodman and her brother. Ms. Acquaviva was not challenged on any inconsistencies between her evidence and her statement to the police or her evidence at the preliminary hearing. Although Ms. Acquaviva did not initially tell the police that she had accompanied her brother on other occasions where he was selling “dab pens,” when confronted with text messages on this subject at the preliminary hearing she interpreted them in court and admitted that they demonstrated she had driven him before.

155For these reasons, I find Ms. Acquaviva to be a credible witness and to be telling the truth when she testified that she had not seen her brother with a knife that night. I do not accept the submission of the Defence that Ms. Acquaviva was lying to protect her brother or lying out of a sense of guilt. Asking her brother if he had anything to protect them was an understandable question with the perpetrators still at large.

156I accept Ms. Acquaviva’s evidence that when she advised her brother that he shouldn’t be surprised “if he died by a gun, if he carried a gun” she was attempting to deter him from carrying a weapon.

157In my view, Ms. Acquaviva was a reliable witness. She was in close proximity to the key events that unfolded that night and in a perfect position to observe what was happening. Ms. Acquaviva was incorrect that her brother was bleeding from his chest. Mr. Acquaviva had blood coming out of his mouth and the collar of his t-shirt was covered in blood. I do not find this to detract from her reliability. Unlike her observations before Mr. Acquaviva was shot, her opportunity to observe where her brother was bleeding from came as she was racing down the street with her brother in the car and after she had run over Mr. Farmer.

158Ms. Acquaviva was mistaken about the number of gun shots that were fired, thinking it was ten rather than five. In her testimony she explained this by wondering if gun shots echo and the speed and surprise with which this all happened. I accept her explanation for this.

159I accept Ms. Acquaviva’s evidence that after Mr. Goodman patted down Mr. Acquaviva, Mr. Acquaviva did not reach into his jacket. He put his hands up to shoulder level and started to back away.

Self-Defence:

160Having found that after Mr. Goodman patted down Mr. Acquaviva, Mr. Acquaviva did not reach into his jacket thereby revealing a flash of silver, I find that Mr. Goodman did not believe on reasonable grounds that force was being used or threatened against him or J.B.G. Therefore, the defence of self-defence is unavailable.

161In the circumstance where Mr. Acquaviva had his hands up and was backing away, I also reject Mr. Goodman’s assertion that he may have had an honest but mistaken belief that force was being used or threatened against him.

162Even if Mr. Acquaviva had reached into his jacket and Mr. Goodman believed, albeit mistakenly, that Mr. Acquaviva had a gun, and therefore Mr. Goodman may have had the purpose of defending or protecting himself and/or J.B.G, once Mr. Acquaviva retreated from him without brandishing a gun after the third shot, Mr. Goodman no longer had a defensive or protective purpose in shooting at him a fourth time from behind. The fifth shot most certainly had no defensive or protective purpose. Mr. Goodman had made good his escape. He could have, as he did later, ducked behind a house while Mr. Acquaviva was on the ground. Instead, he stopped running, turned around, walked back towards Mr. Acquaviva and fired again.

163Finally, even if Mr. Goodman believed Mr. Acquaviva was reaching for a gun, and if he had a defensive or protective purpose in shooting at Mr. Acquaviva the first and second time, I find that his response was not reasonable in the circumstances.

164Mr. Goodman has immersed himself in a world where he must be armed at all times to protect himself. His assumption is that the people he deals with all carry firearms. In his mind, only a person armed with a deadly firearm would walk alone down a street to purchase another gun. This belief followed Mr. Goodman to his later interaction with Mr. Acquaviva where he decided to “pat him down”. Mr. Acquaviva then made the slightest movement without ever displaying a gun. Although the assumption that Mr. Acquaviva was reaching for a gun may have been reasonable to Mr. Goodman, in my view, when considering this perception against the community standard of reasonableness the defence of self-defence must fail. Surely in the context of an interaction where the deceased has displayed no signs of aggression and there has been no conflict whatsoever, reaching for a pocket and seeing a flash of something does not reasonably equate to the need to use deadly force for protection.

Intent:

165Having found that Mr. Goodman was not acting in lawful self-defence when he shot and killed Mr. Acquaviva, I must go on to consider if he had the requisite intent for murder.

166In this case, as the Crown relies on circumstantial evidence to establish that Mr. Goodman had the intent for murder, other plausible theories and other reasonable possibilities arising from the evidence that are inconsistent with guilt must be considered. If there are reasonable inferences other than guilt, the Crown will not have established guilt beyond a reasonable doubt. R. v. Villaroman, 2016 SCC 33 at para. 35.

167In considering whether there is sufficient evidence of the specific intent to kill, a trier of fact should consider inter alia the following evidence, cumulatively and together with all of the evidence in the case:

(i) the nature of the weapon;

(ii) is the wound to a vital part of the anatomy;

(iii) the force with which the wound was inflicted;

(iv) the number of wounds;

(v) the evidence or lack of evidence of premeditation or spontaneity; and

(vi) the presence or absence of defensive motivation.

R. v. Odulate, [2001] O.J. No. 4029 (Ont. S.C.J.).

168A loaded handgun is a particularly lethal and inherently forceful weapon. As Justice Campbell stated in R. v. Rajanayagam, [2001] O.J. No. 393 at para. 17:

It is impossible to draw a bright line in every case between gunshots that provide evidence of intent to kill and gunshots that do not. It is entirely a question of degree having regard to all the circumstances including the firearm, the range, the caliber, the load, the projectile, the number of shots, the aim, and the vital or non-vital portion of the anatomy struck by the bullet.

169The Crown submits that the circumstantial evidence supporting an inference that Mr. Goodman intended to kill Mr. Acquaviva or cause bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not is as follows:

• Mr. Goodman came to a drug deal armed with a loaded firearm with the intention of robbing Mr. Acquaviva;

• Mr. Goodman shot at Mr. Acquaviva at close range when Mr. Acquaviva had his hands up;

• Mr. Goodman shot at Mr. Acquaviva five times; and

• Mr. Goodman came back to shoot Mr. Acquaviva the fifth time when he observed him continuing to move after the fourth shot.

170The Defence contends that I should accept Mr. Goodman’s evidence that he was blind-firing at Mr. Acquaviva not intending to shoot him and that the following circumstantial evidence supports the inference that Mr. Goodman did not intend to kill Mr. Acquaviva or cause bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not:

• Mr. Goodman did not need to rob Mr. Acquaviva of marijuana and “Lean” given the amount of money he had on him and the type of high-level drug dealing he normally engaged in;

• If Mr. Goodman intended to rob Mr. Acquaviva he would have done so at the Malibu when Mr. Acquaviva first walked up;

• If Mr. Goodman had intended to rob Mr. Acquaviva he would have taken the contents of the Cruz, including the backpack containing drugs and the purse or wallet of Ms. Acquaviva;

• Mr. Goodman would have hit Mr. Acquaviva with the first or second shot given their proximity to each other if he had intended to shoot and kill him or cause bodily harm that he knew was likely to cause his death; and

• Mr. Goodman walked past Mr. Acquaviva when he returned to the Malibu and did not shoot Mr. Acquaviva who was clearly alive and saying “don’t shoot.”

171I do not know why the parties met up that night. For reasons I have stated, I have difficulty accepting Mr. Goodman’s version of events that this was a planned gun deal. The evidence tends to support the Crown’s theory that Mr. Acquaviva believed he was meeting up to sell marijuana products as usual. I cannot find beyond a reasonable doubt the reason why the parties met up that night. In my view, I do not need to make this finding to decide the issue of intent.

172I do not accept the evidence of Mr. Goodman on material issues having found him not to be credible. Therefore, I do not accept his evidence that he walked past Mr. Acquaviva who asked him not to shoot.

173The video surveillance shows Mr. Acquaviva running north on Purple Finch Road after the fifth shot. At 6:42:46 p.m. the video surveillance shows Mr. Acquaviva running around the corner of Purple Finch Road onto Serviceberry Road in the direction his sister had driven. Fourteen seconds later, at 6:43:00 p.m., the video surveillance shows Mr. Goodman in the same location running the opposite way.

174Ms. Acquaviva testified that when she was on Serviceberry Road she saw her brother running around the corner in her rear view mirror. She had previously lost sight of Mr. Goodman after he went into a backyard. Ms. Acquaviva testified that she turned the car around and Mr. Acquaviva got into the back seat. She then drove back onto Purple Finch Road where she saw Mr. Goodman and Mr. Farmer and drove towards them as they were running south.

175The Defence contention that Mr. Goodman must have run past Mr. Acquaviva and refrained from shooting him is not borne out on the evidence. I accept Ms. Acquaviva’s evidence that her brother had rounded the corner after Mr. Goodman ducked into a backyard. Mr. Acquaviva was already in the car when Mr. Goodman ran back down Purple Finch Road.

176I do not accept Mr. Goodman’s evidence that he was “blind-shooting” at Mr. Acquaviva and this is the reason he did not hit him when he fired the first two shots. There was no reason to scare or distance himself from Mr. Acquaviva. Mr. Acquaviva was backing up with his hands in the air. It is clear from the video that right before the first shot was fired, Mr. Acquaviva was on the move. He was taking defensive measures to shield himself beside the Malibu and then the Cruz. Mr. Acquaviva continued to try to evade the gunfire until he fell after the fourth shot. Mr. Goodman, who was on the run after the fourth shot, came back and fired a fifth shot after he saw that Mr. Acquaviva was still moving. The only reasonable inference is that he came back to make sure he had done what he intended to do, to kill Mr. Acquaviva or cause bodily harm that he knew was likely to cause his death.

177I am satisfied beyond a reasonable doubt for these reasons that Mr. Goodman intended to kill Mr. Acquaviva or cause bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not when he shot at him five times, four times from a close distance including when Mr. Acquaviva had his back to him and a fifth time when he noticed Mr. Acquaviva was still alive.

Conclusion:

178I find beyond a reasonable doubt that Mr. Goodman had the intent to kill or cause bodily harm that he knew was likely to cause Mr. Acquaviva’s death, and was reckless whether death ensued or not. Therefore, I find Mr. Goodman guilty of second degree murder.