CITATION: R. v. Nona, 2026 ONSC 111

COURT FILE NO.: CR-24-40000514-0000

DATE: 20260106

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

STEVEN NONA and JUAN PABLO SEGOVIA SAN HUEZA

Defendants/Respondents

Daniel DeSantis and Anneke Ingvaldsen, for the Crown

Adele Monaco and Victoria Palermo, for the Defendant/Respondent, Steven Nova

Douglas Holt, for the Defendant/Respondent,

Juan Pablo Segovia San Hueza

HEARD: April 23-25, 28-30; May 1-2, 5-6, 12-13, 15, 20; June 16-18, 20, 23-25, 27; July 30, 2025

JUSTICE PETER BAWDEN

1Steven Nona and Juan Pablo Segovia San Hueza are charged with the first degree murder of Robert Khananisho on April 21, 2023. At 9:45 p.m. that day, Mr. Khananisho was seated in the backroom of the Avellino Social Club with two other men. All three were playing video gambling machines and facing away from the entrance to the room. Two men entered the Club through the front door, walked directly to the back room, and opened fire on Mr. Khananisho. The two other men in the room were left unharmed. It is evident that the assailants knew precisely where Mr. Khananisho was sitting.

2The defendants were not the shooters. The Crown alleges, however, that they assisted the shooters to commit the murder. Mr. Nona told the shooters where Mr. Khananisho was seated in the bar; Mr. Segovia San Hueza helped them to position their getaway car. The shooters have never been identified.

3Defence counsel submit that the evidence does not prove that the accused had any involvement in the plan to kill Mr. Khananisho. They submit that the evidence is consistent with the accused having been engaged in a drug transaction on the night of the murder. If the court should conclude that they did participate in a plan which targeted Mr. Khananisho, counsel alternatively submit that the evidence does not establish that they knew the object of the plan was to kill Mr. Khananisho.

4I have no doubt that the defendants knowingly assisted in a plan to target Mr. Khananisho. I do have a doubt whether they knew that the object of the plan was murder. In my view, it is reasonably possible that the defendants believed that Mr. Khananisho was going to be subjected to a lesser offence such as extortion, robbery, or assault. Accordingly, I am not satisfied beyond a reasonable doubt that the defendants possessed the intent necessary to support a conviction for murder.

5The defendants knew the shooters intended to commit a violent offence against Mr. Khananisho, and that it was reasonably foreseeable that in carrying out that offence, they would commit an inherently dangerous act which created a risk of bodily harm to the deceased that was neither trivial nor transitory. On that basis, I find both defendants guilty of manslaughter. The following are my reasons for these conclusions.

I. EVIDENCE

A. Significant Locations, Vehicles, and People

6The Crown’s case is almost entirely based on digital records and surveillance video. All but one of the relevant events occurred on April 21 and within 6 kilometres of the Avellino Social Club (hereinafter “the Avellino”). Three locations figure prominently in the evidence:

The Avellino Social Club: The Avellino is a small bar located on the east side of Islington Avenue just south of Millwick Drive. It is on the north end of a nondescript strip plaza. The club caters to regular customers who attend most mornings for coffee and return later in the day to converse, drink, and play the video gambling machines. The owner, Gennaro (“Gerry”) Salvino was in the club most of the time and knew all his customers by name.

The Islington Seniors’ Shelter: The Islington Seniors’ Shelter is also located on the east side of Islington Avenue about 3 km south of the Avellino. Approximately three hours before the murder, one of the shooters parked the getaway car in the lot behind the shelter.

16 Bergamot Avenue: Mr. Nona lived with his family at 16 Bergamot Avenue, a housing complex located 6 km south of the Avellino. Mr. Nona and Mr. Segovia San Hueza were at 16 Bergamot before and after the homicide. The getaway car which the killers parked at the Seniors’ Shelter was first seen near 16 Bergamot and was escorted from Bergamot Avenue to the Seniors’ Shelter by Mr. Segovia San Hueza.

7Three cars figured in the evidence:

The White Honda Civic: Mr. Nona and Mr. Segovia San Hueza were driving a rented white Honda Civic on the day of the homicide. They had been using the car for at least two weeks prior to the murder and were often in it together.

The Blue Honda Civic: The shooters arrived at the Avellino driving a stolen blue Honda Civic. This car first appeared on video at 9:15 p.m. going north on Islington about 3 km south of the Avellino. It circled in the vicinity of the Avellino until 9:41 p.m. when it pulled into a spot just in front of the bar. The murder occurred at 9:45 p.m.. After the murder, the shooters drove the blue Civic to the Seniors’ Shelter. They abandoned the blue Civic in a residential street near the Shelter and drove away in the getaway vehicle which had been positioned three hours earlier.

The Dark SUV: The getaway vehicle which was parked in the Seniors’ Shelter 45 minutes before the murder.

8The evidence primarily concerns four people:

Steven Nona: Mr. Nona was 23 years old at the time of the murder. He lived with his family at 16 Bergamot Drive and occupied himself by trafficking guns and drugs. There is no evidence that he had a criminal record. Mr. Nona and the victim were apparently friends despite a significant discrepancy in their ages. The basis for the friendship is unknown. Mr. Nona was not a regular at the Avellino. The first time that the owner of the club ever saw him was on the day of the murder.

Juan Segovia San Hueza Mr. Segovia San Hueza was 22 years old at the time of the murder. He was also engaged in the drug trade and had twice been convicted of possession of a firearm. He owned at least one gun in April 2023. There is no evidence that Mr. Segovia San Hueza had any connection to the deceased.

Robert Khananisho (The Victim) Mr. Khananisho was also involved in street crime including drug trafficking. The patrons of the Avellino treated him guardedly due to his propensity to borrow money, use drugs, and generally cause problems. Mr. Khananisho robbed the Avellino in 2015, and the owner barred him from the premises for several years. Mr. Khananisho eventually apologized, explaining that he had been on drugs when he committed the robbery. The owner relented and Mr. Khananisho became a regular at the Avellino in the months leading up to the murder. He spent most of his time at the Avellino playing on the video gambling machines in the backroom.

Ronny Khananisho Ronny Khananisho was the brother of the deceased. He owned a bar in Woodstock which Mr. Nona frequented. Text messages extracted from Robert Khananisho’s phone suggest that Ronny Khananisho was also involved in drug trafficking.

The following schematic diagram reflects the relevant positions of the key locations.

B. Pre-Offence Events (March 31 Shooting)

9The deceased had been targeted in a public shooting which occurred three weeks prior to the murder.

10On March 31, Robert Khananisho was at the Avellino. He left the club at 7:00 p.m. and Mr. Nona picked him up in a Lexus sedan. Mr. Nona drove out of the plaza and began to travel north on Islington. The Lexus was stopped for a red light at the intersection of Islington Avenue and Millwick Drive when a white SUV pulled up beside the car and an occupant of the SUV fired three shots through the driver’s window of the Lexus. The bullets passed through the cab of the car and penetrated the front passenger door. Neither Mr. Nona nor Mr. Khananisho were injured but the Lexus (which belonged to Mr. Nona’s father) was damaged. Police investigated but were unable to identify the perpetrators. There is no evidence indicating whether Mr. Nona or Mr. Khananisho cooperated with the investigation.

11Police searched Mr. Khananisho’s cell phone after he was murdered on April 21 and found a series of text messages which he had exchanged with Mr. Nona two hours after the shooting. Those messages included the following:

Khananisho: No one is coming for you it’s me they want.

Nona: Bro your brother didn’t want me to go there n before I dropped you I said don’t leave me pops…¹

Nona: Had I not went to that place this wouldn’t have happened, yet I went n you guys closing the door on me bro…

Khananisho: I’m sorry cuz I did’t want you in that situation who would of guessed tht was going to happen

Nona: I know but where am I gonna go right now bro

I don’t even have loot like that

Like call your bro n tell him to help me out bro.

Something at least

I’m in a fucked situation rn (right now) bro

Khananisho: Go home and shake it off

Khananisho: The bar is the worst place to be (8:50 p.m.)

12Mr. Nona insisted that Mr. Khananisho pay for the damage to his father's car and Mr. Khananisho agreed to do so. The men closed the conversation by urging one another to stay safe.

13I draw the following from this exchange:

a. Mr. Khananisho was the target of the March 31 shooting and both he and Mr. Nona knew what had prompted the attack.

b. Mr. Nona recognized that his presence at an earlier event had precipitated the shooting, and he was concerned for his safety.

c. Mr. Nona believed that Mr. Khananisho’s brother, Ronny, could ensure his safety.

d. Mr. Nona played no part in planning or executing the March 31 shooting.

e. There is no evidence that Mr. Nona held any animosity towards Mr. Khananisho as a result of the shooting.

C. Day of Offence (April 21 Timeline)

1:22 p.m. - Mr. Segovia San Hueza obtains a new SIM card

14There is evidence that Mr. Segovia San Hueza displayed unusual cell phone activity before, during, and after the murder. The Crown argues that this conduct indicates he knowingly participated in the murder and attempted to conceal his involvement

15On the day of Mr. Khananisho’s murder, Mr. Segovia San Hueza attended a Rogers store and purchased a prepaid cell phone account under the name “Mike Ross.” He inserted the SIM card for the new account into an iPhone 6S and used that device to send messages and make calls until 6:37 p.m. that evening.² The account was not used again until 5:44 p.m. the day after the murder. Mr. Segovia San Hueza used the account regularly from April 22nd until Mr. Nona’s arrest on May 3 and cancelled it on May 4.

16Mr. Segovia San Hueza also possessed a prepaid Rogers account registered under the name ‘James Hicks,’ purchased on March 28. Although he held the account for nearly a month, it was not used until the night of the murder.³ On April 21, between 6:06 p.m. and 6:20 p.m., he used the account for the first time to send three text messages and make two phone calls while the SIM card was in an iPhone 11. The account was not accessed again until April 24, at which time the SIM card was used in a Google Pixel device.

17The Crown argues that the phone evidence shows Mr. Segovia San Hueza anticipated an event on April 21 that would lead to a thorough police investigation. I accept that his conduct was unusual and lends support to the Crown’s theory. However, I am cautious about placing significant weight on this inference for the following reasons:

• Mr. Segovia San Hueza was trafficking in guns and drugs at the time of these events. He possessed at least four cell phones and frequently switched SIM cards between them. The call detail records which were introduced into evidence do not cover the months preceding the murder, which leaves open the question whether his conduct on April 21 was truly atypical or in keeping with his usual practices. His behaviour may have been intended to avoid detection for other criminal activity rather than to facilitate the murder.

• The Crown emphasizes a period of “radio silence” between the two defendants which began at 6:20 p.m. and continued until the day after the murder. The video evidence demonstrates coordinated meetings between Mr. Segovia San Hueza and Mr. Nona throughout the evening of April 21 which leaves little doubt that they were in electronic communication despite the absence of calls or text messages using conventional telecom systems. Both voice and text communications may have occurred using Internet-based applications such as Snapchat, Signal, or WhatsApp. The fact that other forms of communication were available to the accused diminishes the strength of the inference which can be drawn from a gap in cell phone records.

18Standing alone, Mr. Segovia San Hueza’s phone activity is merely suspicious. Its significance increases, however, when assessed in the context of all the evidence.

5:54 p.m. - Mr. Nona and Mr. Segovia San Hueza Survey the Getaway Route

19The killers parked their getaway vehicle in the lot behind the Islington Seniors’ Shelter approximately forty-five minutes before the murder. The Crown contends that Mr. Nona and Mr. Segovia San Hueza had surveyed this area roughly three hours earlier to assess its suitability for the vehicle exchange. Evidence supporting this position was extracted from the iPhone 11 which Mr. Segovia San Hueza was carrying on April 21. The following data was extracted from the phone:

a. GPS records indicating that Mr. Segovia San Hueza’s iPhone was stationary near a business called “India Bazaar” between 5:54 p.m. and 6:09 p.m. India Bazaar is immediately south of the Seniors’ Residence parking lot where the getaway car was parked and approximately 150 metres west of the location where the blue Civic was later abandoned. It is less than 3 km south of the Avellino.

b. Immediately before stopping near India Bazaar, Mr. Segovia San Hueza performed a series of unusual actions with the iPhone 11. At 5:52:45 p.m., he put the phone into Airplane mode, turned off the power, turned the power back on, then disabled Airplane mode at 5:53:58 p.m. According to the GPS data, the car stopped moving at 5:54 p.m.

c. Mr. Segovia San Hueza sent three text messages using the “James Hicks” account while he was parked near India Bazaar. This was the first time he used that account since purchasing it on March 28. Those messages were routed through the Rogers tower at 2765 Islington Avenue which was geographically the closest tower to India Bazaar.⁴

d. The iPhone 11 remained connected to the infotainment system of the white Honda Civic throughout the time the vehicle was stationary near India Bazaar, indicating that the car was running, and the phone remained in or near the vehicle.

20There is no doubt that Mr. Nona was with Mr. Segovia San Hueza when the car was parked near India Bazaar. Mr. Nona received a two-minute call at 5:47 p.m. which was also routed through the Rogers tower located at 2765 Islington Avenue. GPS data from the iPhone11 establishes that Mr. Segovia San Hueza left India Bazaar at 6:09 p.m., and surveillance video from the Avellino shows that he dropped Mr. Nona at the bar at 6:13 p.m.. The Avellino is a six-minute drive from India Bazaar.

21There is no evidence indicating whether Mr. Nona remained in the vehicle while it was parked near India Bazaar.

Reservations Regarding the GPS Evidence

22I have reservations about the accuracy of the GPS evidence placing the two accused near India Bazaar on April 21. Exhibit 8, Slide 6, depicts a teardrop marker indicating a precise location where they were allegedly parked between 5:54 p.m. and 6:09 p.m., without showing any range of possible error. D.C. Vadivelu, the tech crimes officer who extracted the data, testified that the point was based on satellite signals he believed to be accurate within 5 to 10 metres. However, the Crown did not qualify D.C. Vadivelu as an expert and presented no evidence establishing the margin of error for the GPS data.

23GPS location data is admissible and can be highly reliable evidence. In R. v. Snache, Justice Boswell concluded that courts may take judicial notice of its reliability, and I adopt that finding: see R. v. Snache, 2023 ONSC 2255, at para. 327. In Snache, however, the GPS evidence included a range of accuracy. The most precise location was accurate within a radius of 24.7 metres, and the least precise within a radius of 65 metres.⁵ These figures differ significantly from D.C. Vadivelu’s estimate of 5 to 10 metres.

24My concerns about the accuracy of the GPS data reduce the weight I can assign to this evidence. Had I accepted that they parked at the exact location for fifteen minutes, this would strongly support the inference that they helped plan the shooters’ escape. Conversely, if the margin of error is closer to that described in Snache, the inference becomes significantly less persuasive.

25Defence counsel note that there are many possible explanations for the accused having stopped near India Bazaar, such as eating, smoking, or conducting a drug transaction. I accept that these are reasonable possibilities. However, the significance of the stop is heightened by the following circumstances:

(a) After leaving the area, the accused immediately drove to the Avellino Club, where Mr. Nona met with the deceased.

(b) Later that night, Mr. Segovia San Hueza returned to the same area, driving behind the getaway car and subsequently drove one of the shooters away from the Seniors’ Shelter.

(c) The vehicle switch following the murder was carried out quickly and efficiently. The blue Civic was abandoned on a nearby residential street with minimal risk of the driver being captured on surveillance. The getaway vehicle promptly collected the driver of the blue Civic, allowing the assailants to leave the area. The level of coordination involved in the escape supports an inference that the area had been surveyed and the plan formulated well before the murder.

26Considered in isolation, the GPS evidence is equivocal. When viewed in the context of all the evidence, however, I find that it lends strong support to the Crown’s theory in relation to Mr. Segovia San Hueza. The inference is less compelling, though still present, in respect of Mr. Nona.

6:15 p.m. - Mr. Nona meets with Mr. Khananisho at the Avellino Club

27Mr. Segovia San Hueza drove Mr. Nona to the Avellino after leaving the area near India Bazaar. They arrived at 6:15 p.m. and Mr. Nona walked directly to the games room in the back of the bar. Mr. Khananisho was playing the machine on the left side of the room. The two men exchanged a friendly greeting and Mr. Nona watched Mr. Khananisho play for about a minute. He then warmly clasped hands with the victim and returned to the white Civic. He and Mr. Segovia San Hueza drove away.

7:30 p.m. - Mr. Nona and Mr. Segovia San Hueza meet at 16 Bergamot Avenue

28Mr. Nona and Mr. Segovia San Hueza next appeared on video in the underground parking lot of 16 Bergamot at 7:30 p.m.. Mr. Nona went upstairs to change while Mr. Segovia San Hueza remained in the car. Mr. Segovia San Hueza then drove Mr. Nona to Woodbridge and dropped him off at the bar owned by the deceased’s brother, Ronny Khananisho. Mr. Segovia San Hueza returned to Toronto.

8:37 p.m. - Mr. Segovia San Hueza Escorts the Dark SUV to the Seniors’ Shelter

29Shortly after arriving back in Toronto, Mr. Segovia San Hueza’s iPhone 11 went into lock mode, meaning that the phone required a PIN or biometric input to gain full access. The phone remained locked from 8:26 p.m. until 11:33 p.m. There is no evidence whether Mr. Segovia San Hueza was using the iPhone6 during this period.

30At 8:37 p.m., Mr. Segovia San Hueza pulled into the driveway located immediately across the street from 16 Bergamot.⁶ Ten minutes later, a dark SUV pulled out of the driveway followed by Mr. Segovia San Hueza driving the white Civic. Mr. Segovia San Hueza followed the SUV as it traveled east on Bergamot, north on Islington, east on Wardlaw and into the parking lot behind the Seniors’ Shelter. The two cars parked a short distance apart and a male got out of the SUV and entered the front passenger seat of the white Civic. Mr. Holt very reasonably concedes that this male was one of the two shooters.⁷

31As the shooter got into the white Civic, someone got out of the passenger side of the SUV and moved into the driver’s seat. Mr. Segovia San Hueza and the shooter drove out of the Seniors’ Shelter parking lot at 9:01 p.m. leaving the SUV behind.

32Mr. Holt acknowledges that one inference which can be drawn from Mr. Segovia San Hueza’s attendance at the Seniors’ Shelter is that he was a party to a plan to target Mr. Khananisho. Mr. Holt submits, however, that the evidence is also reasonably consistent with Mr. Segovia San Hueza having been engaged in a drug transaction. He proposes the alternative scenario that Mr. Segovia San Hueza intended to conduct a drug transaction in the parking lot near 16 Bergamot, but the other participants were uneasy about doing a drug deal in a busy public area. Mr. Segovia San Hueza suggested the Seniors’ Shelter as a safe alternative and at the conclusion of the transaction, Mr. Segovia San Hueza agreed to give a ride to one of the participants in the transaction.

33In support of this position, Mr. Holt points out that there is a gap of approximately 20 seconds in the video from the Seniors’ Shelter. The camera positioned at the back of the shelter evidently was motion sensitive. The gap occurs shortly after the two cars arrived in the lot and ends just as the shooter approached the front of the white Civic. Mr. Holt relies on the continuous video which was obtained from a camera located on Wardlaw Crescent which shows the parking lot of the Seniors’ Shelter from a significant distance. He submits that the Wardlaw video shows movement between the two vehicles during the 20 second gap in the Seniors’ Shelter video. Mr. Holt argues that this movement cannot be explained if the purpose of the trip to the shelter was simply to drop off the SUV and drive the shooter away. Mr. Holt concludes that the more likely inference is that Mr. Segovia San Hueza was engaged in a drug deal with the occupants of the SUV, unaware they planned to commit a murder shortly after the transaction.

34I do not accept this submission for several reasons. First, there is no evidence that a drug transaction was ever intended to occur at the complex near 16 Bergamot or that anyone became uneasy about conducting a transaction there. The only evidence concerning the Bergamot meeting is that Mr. Segovia San Hueza drove into the complex and followed the SUV out ten minutes later. There is a gap in the evidence as to what was said or done at the complex, and although reasonable doubt can arise from gaps in the evidence, it cannot arise from speculation or conjecture about events that might have occurred.

35Secondly, I have carefully viewed the video evidence from the Wardlaw camera and do not find any evidence which materially adds to what can be seen from the camera positioned on the side of the Seniors’ Shelter. The Shelter camera clearly did not pick up all movement in the parking lot, but there is nothing in the Wardlaw footage which causes me to believe that any material activity was missed.

36Third, the defence theory that the meeting at the Shelter was for a drug transaction cannot account for the conduct of the shooter who entered Mr. Segovia San Hueza’s vehicle at the Shelter. I do not believe that a drug trafficker would drive to the Shelter to conduct a transaction with Mr. Segovia San Hueza, then leave his own vehicle—with its driver remaining inside—for nearly an hour, and subsequently return to the scene of the alleged transaction after committing a murder. Added to this is the improbability that Mr. Segovia San Hueza would have suggested a location for a drug transaction that happened to be only three kilometres south of where the other party intended to commit a murder, and further, that the victim of that homicide was coincidentally a close associate of Mr. Segovia San Hueza’s close friend, Stephen Nona. The theory is so improbable that it must be rejected as unreasonable.

37The facts give rise to a very powerful inference that Mr. Segovia San Hueza knowingly assisted the shooters to position their getaway car. I reject the suggestion that Mr. Segovia San Hueza was merely engaged in a drug deal.

9:15 p.m. - The movements of the blue Honda Civic prior to the murder

38The blue Honda Civic first appeared on video at 9:15 p.m. when it passed a surveillance camera mounted near India Bazaar. The car was traveling northbound on Islington Avenue and was only 3 km south of the Avellino. The getaway car was already in position. There is no apparent reason why the killers could not have proceeded directly to the club to commit the murder, but they did not. The blue Civic instead circled in the area near the Avellino Club until 9:41 p.m. It can reasonably be inferred that the killers were waiting for something before attending the club. The Crown submits that they were waiting to be told where Mr. Khananisho was sitting in the club.

39The movements of the blue Civic and the white Civic between 9:15 p.m. and 9:41 p.m. support the Crown theory:

• The blue Civic pulled into a strip plaza located at 2965 Islington at 9:21 p.m. This plaza is south of the Avellino Club and I will describe it as the “Angel’s Convenience Plaza”. The blue Civic entered the plaza, did a three-point turn, then drove west across Islington Avenue and continued west on Vanhill Avenue, a nearby residential street.

• Less than three minutes after the blue Civic left the Angels Convenience Plaza, the white Civic arrived. Mr. Segovia San Hueza was driving. Mr. Nona got out of the car, went into Angel’s Convenience store, then returned to the Civic. Mr. Segovia San Hueza then drove to the Avellino Club, dropped Mr. Nona off at 9:24 p.m., and left the area going southbound on Islington Avenue.

• The blue Civic pulled into a plaza located at 195 Millwick Drive at 9:39 p.m.. This plaza is located just north of the Avellino Plaza. The car turned into the Millwick Plaza, drove to the north end, did a three-point turn, then drove back out onto Millwick Drive and towards the Avellino Club. It pulled into parking spot in front of the bar at 9:41 p.m..

40The Crown hypothesizes that the blue Civic mistakenly pulled into the Millwick Plaza, thinking it was the plaza where the Avellino Club was located. Upon realizing their error (perhaps with the assistance of Mr. Nona) the shooters turned around and drove to the Avellino plaza.

41While the Crown’s theory may account for the movements of the blue Civic, other inferences exist. Defence counsel argue that if the murder was as meticulously planned as alleged, the perpetrators would have known the Avellino Club’s address and could have easily navigated there using Google Maps. Further, the blue Civic’s brief entry and exit from the plaza left little time for the occupants to realize they were in the wrong location and obtain directions to another site.

42I cannot draw any inference from the blue Civic’s turn into Millwick Plaza. This may have been an error or a deliberate pause while awaiting confirmation of the victim’s location. Although video from the Avellino Club shows Mr. Nona texting rapidly at about the time the blue Civic entered Millwick Plaza, there is no evidence that he was in contact with the shooters. It would be speculative to conclude that he was directing them to the Avellino.

43The killers were waiting for something before proceeding to the Avellino Club. They had been in the area since 9:15 p.m., and their decision to switch vehicles after the murder indicates concern that the blue Civic might be identified. The longer they remained in the vicinity, the greater that risk became. While several explanations for the delay are possible, the most probable is that they were awaiting confirmation of Mr. Khananisho’s precise location

9:25 p.m. - Mr. Nona’s attendance at the Avellino Club just before the murder

44At 9:25 p.m., Mr. Nona entered the Avellino Club. He proceeded toward the backroom but was stopped by the owner, who did not recognize him. Mr. Nona stated that he was there to see Mr. Khananisho, and the owner escorted him to the backroom. Mr. Khananisho confirmed that he knew Mr. Nona, after which the owner left. The two other men present, Mr. Dived and Mr. Audisho, were regular patrons of the Avellino and had never seen Mr. Nona before April 21.

45The backroom of the Avellino Club was a small rectangular space, just large enough to accommodate three gambling machines and two small coffee tables situated between the machines. There was a single door providing access to the room, located directly behind the middle machine. The players sat with their backs facing towards the door.

46When Mr. Nona arrived, all three machines were occupied. Mr. Khananisho was playing the middle machine and was wearing a white t-shirt, and a baseball cap. Mr. Dived was at the machine to his left, and Mr. Audisho at the machine to his right. The other two men were easily distinguishable from the deceased: they wore darker clothing and had no hats.

47Upon entering the room, Mr. Nona greeted Mr. Khananisho and immediately handed him a $20 bill. There is no indication that Mr. Khananisho requested the money, but he accepted it without hesitation. He continued playing while Mr. Nona stood behind his right shoulder, lit a cigarette, and took out his cell phone. Leaning against the wall, Mr. Nona began texting on the phone. About 15 seconds later, he tilted the phone back and touched the bottom of the screen. At that moment, the phone’s camera lens was pointed towards Mr. Khananisho’s back.

48Mr. Nona remained in the backroom for approximately 12 minutes. During that time, he spoke occasionally with Mr. Khananisho and had a longer conversation with Mr. Dived, who was seated to Mr. Khananisho’s left. He spent most of his time texting on his cell phone. None of the other three men in the room used their phones during this period. The video does not suggest that Mr. Nona was waiting to play the machines, and he did not purchase food or drink.

49Although Mr. Khananisho received a $20 bill from Mr. Nona almost immediately after Mr. Nona entered the room, he did not insert the money into the machine right away. He held it for approximately seven and a half minutes before doing so, during which time Mr. Nona stood behind him, texting on his phone. Less than three minutes after the deceased inserted the money, Mr. Nona left the Avellino. There is no indication that he said goodbye to the deceased or informed him that he was leaving.

50Mr. Nona left the Avellino Club at 9:37 p.m. The killers arrived in the parking lot at 9:41 p.m. but did not enter the club until 9:45 p.m. Upon entering, they proceeded directly to the backroom. As the first shooter rounded the open door, he raised his firearm and immediately fired at Mr. Khananisho’s back. The shooter made no effort to confirm the victim’s identity before opening fire and ignored Mr. Dived and Mr. Audisho. These actions satisfy me that he knew what Mr. Khananisho was wearing and where he was seated

Mr. Audisho’s Evidence Regarding a Conversation Between the Deceased and Mr. Nona

51Mr. Audisho testified on cross-examination that, at some point while Mr. Nona was in the backroom immediately before the shooting, he said to Mr. Khananisho words to the effect of ‘c’mon, let’s go’ and ‘I am ready to go,’ to which Mr. Khananisho replied ‘wait.’ Mr. Audisho believed that Mr. Khananisho had called Mr. Nona for a ride, but he paid little attention to the exchange as he was focused on his game.

52Ms. Monaco relies heavily on this evidence to support her position that Mr. Nona was not involved in the plan to kill Mr. Khananisho. She argues that if Mr. Nona was urging the victim to leave the club, prior to the arrival of the shooters, it precludes any possibility that he was a party to their plans.

53I have difficulty in accepting Mr. Audisho’s recollection of the conversation between the deceased and Mr. Nona. He did not mention the conversation in his examination-in-chief, and there is no indication that he had ever raised it prior to the cross-examination. The conversation that he recalls makes little sense in the context of the evidence. Mr. Nona did not have a car to take Mr. Khananisho anywhere. The video shows no sign of Mr. Nona urging Mr. Khananisho to leave; on the contrary, he handed him a $20 bill upon entering which suggests he expected Mr. Khananisho to remain and play until the funds were used. If Mr. Nona had been eager to leave, he would likely have called an Uber to the Avellino. Instead, he walked south to a nearby plaza and summoned an Uber from there. While I do not doubt Mr. Audisho’s credibility, I find this aspect of his evidence to be unreliable.

54Even if Mr. Nona did suggest that the victim leave the Avellino, I do not regard this as conclusive evidence that he was uninvolved in the plot. Shooting Mr. Khananisho inside the club carried significant risks, including the presence of witnesses and numerous surveillance cameras. He had been successfully targeted just outside the Avellino on March 31 and could have been attacked outside of the club even more easily in the dark on April 21. Even if Mr. Audisho’s recollection is correct, I would not consider it to be evidence which exonerates Mr. Nona.

Did Mr. Nona Take a Photograph of the Victim?

55The most contentious issue is whether Mr. Nona took a photograph of Mr. Khananisho as he was standing behind him in the backroom. Mr. Nona tilted the phone back, touched the bottom of the screen, and then used his left hand to touch the top right corner. This last gesture is consistent with closing an application such as the camera app.

56While I accept that Mr. Nona’s gestures are consistent with taking a photograph, I cannot make a definitive finding to that effect. There are numerous ways to take a photo on a cell phone, and drawing a conclusion based on a series of gestures would require significant speculation. I note, however, that taking a photograph was not necessary to identify Mr. Khananisho to the shooters; he was easily recognizable by his clothing, his hat, and his position in the room.

9:37 p.m. - The alibi evidence for Mr. Nona

57Mr. Nona left the Avellino at 9:37 p.m. and walked south toward the next plaza on Islington. He arrived at the 3J Variety store just before 9:39 p.m. and stood outside for several minutes using his cell phone. At 9:42 p.m., he entered the store and attempted to purchase a can of Red Bull by tapping his phone. When the transaction failed, he paid in cash. He then left the store and was picked up by an Uber at 9:44 p.m. Mr. Nona’s presence was captured on surveillance cameras inside and outside the store.

58Mr. Nona had returned to 16 Bergamot by 10:00 p.m.. He was picked up there by Mr. Segovia San Hueza in the white Civic at 10:16 p.m..

9:39 p.m. - The alibi evidence for Mr. Segovia San Hueza

59Mr. Segovia San Hueza drove the white Civic into a shopping plaza located at 1701 Martingrove Road at 9:39 p.m.. This plaza is a 9-minute drive from the Avellino. Mr. Segovia San Hueza and a young woman got out of the car and walked into a Pizza Pizza store located inside the plaza. They came out of the plaza 15 minutes later and drove away in the Civic.

60The Crown asks the court to infer that Mr. Segovia San Hueza entered the pizza store at the time he knew the murder was occurring to ensure he would have an alibi. Mr. Holt disputes this contention. He notes that surveillance cameras in public spaces are ubiquitous, making it unlikely that Mr. Segovia San Hueza could have gone anywhere without appearing on video. Mr. Holt submits that his presence on surveillance footage does not support any inference, let alone that he was manufacturing an alibi.

61Mr. Holt’s point is well taken, but there is evidence that could support a finding that the alibis of the two accused were coordinated:

• The killers arrived at the Avellino only three minutes after Mr. Nona had left. They waited in the blue Civic for four minutes before entering the club. That delay allowed time for Mr. Nona to walk to the next plaza, order an Uber, and enter the store. There is no apparent reason why Mr. Nona did not call the Uber to the Avellino.

• After Mr. Nona’s arrest, Mr. Segovia San Hueza urged Mr. Nona’s sister to obtain the surveillance video from 3J Variety and the Uber car to prove his innocence. His familiarity with the details of Mr. Nona’s alibi and his recognition that it could be verified through digital evidence is unusual. At the very least, it shows that he and Mr. Nona had discussed Mr. Nona’s whereabouts at the time of the murder in detail.

• Mr. Segovia San Hueza’s visit to the Pizza Pizza store at 9:39 p.m. was the first time that evening he left the white Civic that evening. His iPhone 11 remained connected to the car’s infotainment system from 7:02 p.m. until 9:14 p.m.

62Standing alone, I would attach little significance to Mr. Segovia San Hueza’s visit to the pizza store. It may be mere coincidence that the first time he left the car and appeared on video coincided with the timing of the murder. This single fact does not, however, stand alone. Viewed in the broader context of the case, it lends some modest support to the Crown’s theory.

9:52 p.m. - The Shooters Return to the Getaway Car

63After killing Mr. Khananisho, the shooters drove 2.6 kilometres south on Islington Avenue to the rear of the Seniors’ Shelter. One shooter exited the blue Civic and ran to the SUV. The SUV’s driver, who had remained in the vehicle since 9:00 p.m., started the engine as the shooter approached. Meanwhile, the other shooter drove the blue Civic to a nearby residence at 11 Fingal Place, left it there, and then boarded the SUV, which departed the area

D. The Post Offence Conduct of Mr. Nona

64The Crown relies on the following post offence conduct by Mr. Nona as circumstantial evidence tending to prove that he was engaged in the plan to kill Mr. Khananisho:

a. Mr. Nona had maintained a Rogers account in his own name since June 2021, and the SIM card for that account was consistently used in his iPhone 12. Four days after Mr. Khananisho’s murder, Mr. Nona returned his iPhone 12 to a Rogers store and obtained a new iPhone 14. The exchange was final, and the agreement specified that the iPhone 12 could not be retrieved once the transaction was complete.⁸

b. Mr. Nona chose to use a new telephone number when he purchased the iPhone14. He explained this decision in a message which he sent to a friend on April 27: “This is my new number, changed my old one due to some issues.”

c. On May 1, Mr. Nona told a woman that he was staying at a friend’s condominium: “She has a condo n idk if you heard or not… But my boy got killed…So I been staying low key n chilling at her condo.”

d. On May 3, Mr. Nona texted Mr. Segovia San Hueza while he was being detained by police in the white Civic and reminded him that he had left a gun in the car.

65Mr. Nona’s post-offence conduct is of limited value in establishing his culpability for the murder. He had been with Mr. Khananisho on March 31 when Mr. Khananisho was the target of a serious shooting, and again only moments before he was killed. It would have been obvious to anyone in Mr. Nona’s position that police would regard him as a person of interest in the homicide investigation. Mr. Nona was involved in drug and firearm trafficking, making it unlikely that he would have wished to cooperate with police and reasonable that he might have feared the consequences of police scrutiny of his activities. His decision to stay at a friend’s condominium rather than his family home on Bergamot Avenue can readily be explained by fear arising from the March 31 shooting and the realization that Mr. Khananisho had now been murdered. It is understandable that he would be fearful of being in public after such events.

66The one aspect of Mr. Nona’s post-offence conduct that has probative value is his acquisition of a new cell phone very shortly after the killing. As will be discussed later in this judgment, Mr. Segovia San Hueza also obtained a new cell phone less than a week after the killing. The fact that both accused replaced their phones almost immediately after the homicide supports an inference that they were involved in the murder and recognized that their phones could incriminate them

E. The Arrest of Mr. Nona

67On May 3, Mr. Nona and Mr. Segovia San Hueza were parked on the side of Millwick Road in the white Civic. A patrol officer pulled up behind the vehicle and began to run the plate. As he did so, Mr. Segovia San Hueza exited from the driver’s seat and walked into a nearby residence. Mr. Nona remained in the car. The officer learned there was a CPIC alert for Mr. Nona and requested that other officers attend. A second marked car arrived and boxed in the white Civic. Mr. Nona was arrested, and his phone was seized.

68Police subsequently searched the white Civic and uncovered two digital scales, 24 grams of crack cocaine, baggies, and empty vials capable of holding small amounts of drugs.

F. Post Offence Conduct of Segovia San Hueza Prior to Nona’s Arrest

69There is no evidence that Mr. Segovia San Hueza’s behaviour materially changed after the murder. He continued to sell drugs and possess firearms. The only notable conduct prior to the arrest of Mr. Nona is a text conversation which he had over WhatsApp with his aunt on April 28. Mr. Segovia San Hueza implored his aunt to buy a new phone for him using her own phone plan. He promised to pay for the phone. She replied that she didn’t have a plan and only had a phone provided through her workplace. Mr. Segovia San Hueza then asked her to obtain a plan for him and she refused.

70On April 29, Mr. Segovia San Hueza obtained yet another prepaid Rogers account. This account was also registered in the name of “Mike Ross”. The new account was not used for any purpose until 6:02 p.m. on May 4. The switch to this account occurred shortly after Mr. Segovia San Hueza learned that Mr. Nona had been arrested for first degree murder.

71Mr. Segovia San Hueza possessed at least four phones in the period between April 21 and May 7. The fact that he was urgently seeking a fifth phone shortly after the murder is consistent with the Crown theory that he was exceedingly phone conscious on the day of the murder and in the ensuing weeks.

G. Segovia San Hueza’s Conduct After the Arrest of Nona

72Mr. Segovia San Hueza watched as police boxed in the white Civic and briefly texted with Mr. Nona before he was arrested. Mr. Nona reminded him that his gun was still in the car. Mr. Segovia San Hueza saw the police apply seals to the doors of the car and tow it away without having searched it.

73In the hours following Mr. Nona’s arrest, Mr. Segovia San Hueza sent numerous messages to associates seeking assistance in breaking into a police impound lot to retrieve his firearm. He expressed various reasons for considering this risky course of action, including concern that his fingerprints would be found on the weapon, potentially leading to a third conviction for possession of a firearm. He also expressed concern for Mr. Nona, stating, ‘This guy doesn’t have nothing to do w it.’⁹ While none of his messages directly referenced the homicide of Mr. Khananisho, his associates repeatedly warned him not to attempt to retrieve the gun because he was ‘so hot,’ a warning that Mr. Segovia San Hueza did not dispute.

74Mr. Segovia San Hueza was uncertain why Mr. Nona had been arrested, and he made many inquiries to find out. At 8:10 p.m. on May 3, he messaged a woman named Linda and asked her to call him on FaceTime regarding Steven, explaining that he could not talk on the phone.¹⁰ He provided Linda with the phone number for 31 Division and asked her to call for information about Mr. Nona. He specifically wanted to know if Mr. Nona had been charged and if he was being questioned.¹¹ Linda later responded “they ain’t telling me shit.”

75On May 4 at 6:00 am, Mr. Segovia San Hueza successfully broke into the Toronto Police Service Forensic Identification Unit impound lot, entered the sealed white Civic and retrieved his handgun. He evidently forgot to take a fully loaded magazine from the pocket behind the front passenger's seat.

76Mr. Segovia San Hueza’s concerns regarding Mr. Nona’s arrest did not abate after retrieving the firearm. At 11:30 a.m. on May 4th, he expressed concern to an associate that Mr. Nona had been taken to 31 Division. He was aware that he ordinarily would have been taken to 13 Division. Mr. Segovia San Hueza told his associate that police had searched Mr. Nona’s home and seized an “Essential” brand hoodie and “white kicks”, the clothing that Mr. Nona had been wearing on the night of the murder. Mr. Segovia San Hueza asked his friend if he had Signal (a secure messaging application) and the friend said that he did not. The following exchange then occurred:

Mr. Segovia San Hueza: Fuk Mr. Segovia San Hueza: I just needs know Mr. Segovia San Hueza: If it was for dat nap Response: It is Mr. Segovia San Hueza: Ok. Say less. That’s all I needed to know.

77D.C. Patrick Duerden was qualified to give opinion evidence regarding coded, slang, and covert language. He testified that the phrase ‘dat nap’ could refer to an assault rendering the victim unconscious, a short form for kidnapping, or a murder. He noted that he had encountered the term ‘dirt nap’ used to describe murder in wiretap interceptions and provided an example from Reddit where the phrase was used in that sense. While he agreed that ‘dat nap’ is not necessarily identical to ‘dirt nap,’ he observed that slang and street language continually evolve and that context is often the best guide to meaning. In my view, the context of the conversation between Mr. Segovia San Hueza and his associate clearly demonstrates that they were referring to the killing of Mr. Khananisho.

78By 12:30 that afternoon, Mr. Segovia San Hueza knew that Mr. Nona had been charged with first degree murder.¹² He was concerned that he didn’t have a safe place to stay and immediately began to secure a ticket to fly to Yellowknife under a false name. He explained his plan to his friend as follows: “Broski I’m trynna gtfo (get the fuck out) I’m not trynna get indicted” He later said “Like this guy got knocked for a 1… I’m next fam”¹³

79Mr. Nona’s sister, Sandy Nona, messaged Mr. Segovia San Hueza on May 4 at 8:26 p.m.. She explained that Mr. Nona had told her to contact him because “u have shit I should know.”¹⁴ The two first communicated using Instagram and then switched to Signal. At 8:43 p.m., Mr. Segovia San Hueza asked Sandy to send him Mr. Nona’s Uber login password and then gave her the following instruction:

Mr. Segovia San Hueza: And yo go he was at the convenience store… Before it happened… Try to go and seee if u can get camera… Footage Sandy: Which convince (sic) store Mr. Segovia San Hueza: The one beside the shooting… and yo… Ask him… R u sure? Sandy: Ask him wha? Mr. Segovia San Hueza: What convenience store… He was at… When he called the uber… And then you go there… And try to get footage… of that day… And the. (Sic) Give it to the lawyer.¹⁵

II. LEGAL PRINCIPLES

A. Party Liability for First Degree Murder

80No one disputes that the victim died as result of planned and deliberate murder. That much is evident from the positioning of the getaway car, the use of a stolen vehicle to take the perpetrators to the scene, and the manner in which the victim was killed.

81The Crown alleges that the defendants aided the perpetrators to commit the murder and are therefore parties to the offence pursuant to section 21(b) of the Code:

Parties to offence

21 (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

82Justice Fairburn outlined the elements the Crown must establish to secure a conviction for first-degree murder under section 21(1)(b) in R. v. Mohamed, 2025 ONCA 611.

[114] For purposes of the actus reus, the aider must do something to assist the principal in the commission of the offence. Performing the role of a getaway driver would clearly meet that requirement.

[115] For purposes of the mens rea, there are two components: intention and knowledge. The aider’s intention must be to help the principal commit that offence. As emphasized in Briscoe, at para. 16, intention is not to be confused with desire. Therefore, even if the aider does not want the principal to commit the offence, the aider must intend to assist the principal in its commission. Secondly, the aider must know what offence the principal intends to commit. As a matter of “common sense”, this knowledge is a prerequisite to proof of intention: Briscoe, at para. 17; Maciel, at para. 88. In the case of first-degree murder, the Crown must prove that the aider knew the murder was planned and deliberate and intended to assist the perpetrator in carrying it out: Maciel, at para. 89.

B. Proof Based Solely on Circumstantial Evidence

83In this case, the Crown relies solely on circumstantial evidence to establish the essential elements of the offence. Accordingly, it must show that the guilt of each accused is the only reasonable inference which can be drawn from the evidence. A reasonable doubt may arise not only from the evidence itself but also from reasonable alternative explanations, as noted in R. v. Ali, 2021 ONCA 362:

[97] An inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence. However, when the jury is considering whether the Crown has met its burden to show that guilt is the only reasonable inference, the jury is not engaged in fact-finding and is not limited to considering alternative explanations founded on the evidence. Instead, the jury is testing the force of the inference urged by the Crown against the reasonable doubt standard. In doing so, the jury can consider other reasonable alternative explanations for the conduct. Those alternative explanations may or may not lead the jury to conclude the Crown has failed to prove that guilt is the only reasonable inference available on the evidence: R. v. Villaroman, 2016 SCC 33, at paras. 28, 35-42.

[98] In determining whether the Crown has met that burden in a circumstantial evidence case, the jury may apply its logic and common sense to the totality of the evidentiary picture, including gaps in that picture, and consider whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available. As explained in Villaroman, at para. 36:

… a reasonable doubt or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence … a certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

84In reviewing the evidence, I addressed the strengths and weaknesses of certain inferences advanced by the Crown. For example, I noted the uncertainty surrounding the accuracy of the GPS data placing the defendants at India Bazaar on the day of the homicide. I also observed the lack of a complete record of Mr. Segovia San Hueza’s phone activity, which could have clarified whether his activity on April 21 was truly unusual or consistent with his usual conduct as a drug trafficker.

85While it is important to identify potential weaknesses in circumstantial evidence, inferences must ultimately be drawn from the evidence as a whole. An inference that appears weak in isolation may gain strength when considered in the broader context. I am required to assess the totality of the evidence when drawing inferences from circumstantial evidence: R. v. Villaroman, 2016 SCC 33 at para. 31.

III. ANALYSIS

A. Proof of Assistance and the Intention to Assist

86The Crown must establish that the defendants aided the perpetrators in committing the murder and that they intended to do so. As the same evidence relates to both elements, I will address them together in the following factual findings.

The Accused Were Working in Concert on April 21

87I find that Mr. Nona and Mr. Segovia San Hueza acted in a coordinated manner throughout the evening of April 21. This conclusion is based primarily on the occasions when they met that day during key events, as outlined below.

i. They were together surveying the area near the Seniors’ Shelter at 6:00 p.m.

ii. Mr. Segovia San Hueza drove Mr. Nona to the Avellino after leaving India Bazaar and waited for him while he went inside to meet with Mr. Khananisho.

iii. They were together again at 7:30 p.m. at 16 Bergamot and Mr. Segovia San Hueza drove Mr. Nona to Ronny Khananisho’s bar in Woodbridge.

iv. Mr. Nona returned from Woodbridge to 1045 Albion Road in an Uber and Mr. Segovia San Hueza picked him up there. They drove together to Angel’s Convenience Store and arrived less than three minutes after the blue Honda Civic had left.

v. Mr. Segovia San Hueza drove Mr. Nona to the Avellino at 9:25 p.m. and then left the area with the white Civic.

vi. The two accused met up again at 16 Bergamot at 10:16 p.m. and spent the rest of the night together.

88The pattern of these meetings demonstrates that the two accused were in communication throughout the night, despite the absence of any calls or text messages on their respective telecommunications accounts.

89My conclusion that the two men acted in concert is supported by a message Mr. Segovia San Hueza sent after Mr. Nona’s arrest. Mr. Segovia San Hueza wrote to a friend that he expected to be arrested next (“Like this guy got knocked for a 1… I’m next fam”). This statement—admissible only against Mr. Segovia San Hueza—implicitly acknowledges that they were working together on April 21. Although Mr. Segovia San Hueza did not know the evidence leading to Mr. Nona’s arrest, he understood that any evidence implicating Mr. Nona would also implicate him.

90The Crown does not rely on the co-conspirators’ exception to the hearsay rule. Accordingly, the acts and statements of each accused are admissible only against that individual. However, their coordinated actions and movements on the day of the murder form a significant part of the circumstantial evidence, which satisfies me that they were jointly engaged in carrying out a plan.

Mr. Segovia San Hueza Anticipated Police Scrutiny

91Mr. Segovia San Hueza exhibited highly unusual phone activity beginning on April 21, which continued for at least a week after the murder. Examples of this behaviour include:

i. Purchasing a new cell phone plan on the day of the murder.

ii. Putting his phone into airplane mode and then turning it off just before arriving at India Bazaar.

iii. Using a new cell phone number for the first time while parked near India Bazaar.

iv. Begging his aunt shortly after the murder to buy him a new phone.

92I find this unusual activity is directly related to Mr. Segovia San Hueza’s involvement in a plan to target the deceased.

93My finding regarding the significance of Mr. Segovia San Hueza’s unusual phone use is strengthened by the evidence that Mr. Segovia San Hueza was familiar with police practices and investigative techniques:

i. Mr. Segovia San Hueza had at least four phones at the time of the offence and regularly switched SIM cards between the four phones.

ii. Mr. Segovia San Hueza observed that the officers who arrested Mr. Nona did not immediately search the white Civic. Instead, they sealed the doors and arranged for the vehicle to be towed. Mr. Segovia San Hueza recognized this as unusual and was concerned by it.

iii. Mr. Segovia San Hueza also noted that it was unusual that Mr. Nona had been taken to 31 Division when he had been arrested by 23 Division officers, and he surmised (correctly) that this was related to the seriousness of his charge.

iv. He knew that he would have time to retrieve his gun from the white Civic in the FIS impound because police would need to obtain a warrant to search the car and that would take time.

v. Mr. Segovia San Hueza was aware of the details of Mr. Nona’s alibi and instructed Mr. Nona’s sister to obtain the convenience store video and the dashcam footage from the Uber that picked him up outside the store.

94The evidence demonstrates that Mr. Segovia San Hueza was keenly aware of police investigative techniques which leads me to find that his manipulation of phones and SIM cards near the time of the murder was deliberate. It reflects an intention to avoid leaving digital traces and a determination to obstruct any investigation into his activities that night.

Planning the Perpetrators’ Escape

95I find that the presence of both accused near the Seniors’ Shelter at approximately 6:00 p.m. on the day of the murder was for the purpose of planning and facilitating the shooters’ escape after the attack on the victim. I reach this conclusion despite certain limitations in the evidence. Standing alone, the GPS data would not support this finding, and there are alternative explanations for their stop near India Bazaar. However, when the evidence is considered in its entirety, I find that the 15-minute stop was intended to position the perpetrators’ getaway vehicle rather than any of the alternative possibilities suggested by defence counsel.

96In Mr. Segovia San Hueza’s case, the strength of the inference is significantly reinforced by his later conduct that evening. He attended the location in the company of the getaway vehicle and departed with one of the shooters. Mr. Segovia San Hueza resided at 85 Emmett Avenue, near Eglinton and Jane, and there is no evidence that he had any connection to the Islington and Finch area. He met the getaway vehicle at a building across from 16 Bergamot, Mr. Nona’s residence, and then followed it to the Seniors’ Shelter parking lot. The occupants of the SUV were not relying on Mr. Segovia San Hueza for directions. Mr. Segovia San Hueza’s purpose in escorting the getaway car to the Shelter was to transport the shooter to meet the driver of the blue Civic. His earlier presence in the area was not coincidental but necessary to confirm the suitability of the Shelter parking lot for the planned exchange.

97Although the inference is not as strong with respect to Mr. Nona, I do find that his attendance at India Bazaar was in furtherance of the same plan. This conclusion is supported by the following facts:

i. Mr. Nona and Mr. Segovia San Hueza acted in concert throughout April 21 and shared a relationship of close trust. It is highly unlikely that Mr. Segovia San Hueza would engage in criminal activity without Mr. Nona’s knowledge.

ii. After leaving India Bazaar, Mr. Nona went directly to the Avellino to meet Mr. Khananisho. This meeting was the first step in confirming the victim’s presence at the bar and set subsequent events in motion.

98The connection between Mr. Nona’s presence at India Bazaar and his subsequent meeting with Mr. Khananisho at the Avellino was not coincidental. These events were linked by Mr. Nona’s participation in a plan to assist the perpetrators in committing an offence targeting Mr. Khananisho.

Locating the Victim for the Perpetrators

99The shooters’ conduct demonstrates that they knew precisely where Khananisho was seated when they entered the Avellino. That information had to be current; even a brief delay could have resulted in the victim changing seats and the wrong person being shot. Only four individuals could have conveyed the victim’s exact location to the shooters: Mr. Salvino (the owner), Mr. Raad Audisho, Mr. Dived, and Mr. Nona. In my view, the video evidence excludes all but Mr. Nona as the source of that information.

100Mr. Dived and Mr. Audisho remained in the back room playing video machines from the time Mr. Nona entered at 9:25 p.m. until the shooting occurred at 9:45 p.m. Neither used a cell phone during that period. On the occasions when the owner appeared on video, he was not using a phone. The only person using a cell phone was Mr. Nona, who did so almost continuously while in the back room.

101Mr. Dived and Mr. Audisho were placed in mortal danger during the shooting, as either could have been struck by ricocheting bullets. Both men were visibly shocked when the gunfire began and fled for their lives. The owner was likewise startled and attempted to escape through the front door. If any of these three men had known that such an act was imminent, they would have left before the perpetrators arrived. The only person who did leave the Avellino immediately before the shooters entered was Mr. Nona.

102My finding is further supported by the fact that Mr. Nona gave a $20 bill to Mr. Khananisho almost immediately upon entering the room, despite no indication that Mr. Khananisho requested it. The victim did not insert the money into the machine he was playing until 7½ minutes later. During that time, Mr. Nona stood behind him, either texting on his phone or briefly conversing with Mr. Dived. Three minutes after Mr. Khananisho inserted the $20 bill into the machine, Mr. Nona left the bar.

103I find that Mr. Nona was waiting to see Mr. Khananisho insert the money because he knew that, once he did, Mr. Khananisho would continue playing until the money was spent. This ensured that the victim would remain in the same position for a several minutes.

104The inference that Mr. Nona was communicating with the shooters is further supported by his movements immediately before the murder. He left the Avellino Plaza at 9:37 p.m., walked south to the 3J’s Variety store arriving there at 9:39 p.m. He remained outside of the 3J store using his cell phone until 9:42 p.m. when he went inside and purchased a Red Bull drink. He then departed in an Uber at 9:44 p.m. The shooters arrived at the Avellino at 9:41 p.m. but did not enter the bar until 9:45 p.m., just after Mr. Nona had left the area.

105There is no apparent reason why Mr. Nona did not arrange for an Uber to pick him up at the Avellino. Ms. Monaco suggests that he might have gone to the adjoining plaza because he wanted to buy a Red Bull before catching an Uber, but there is no reason to believe that he could not have purchased a drink at the Avelino. Moreover, he did not immediately buy the drink upon arriving at the 3J store. He stood outside the store for three minutes texting on his phone before going inside, suggesting that purchasing a drink was an afterthought rather than the reason that he walked to the store.

106In my view, the convergence of these events is far too great to be coincidental. I have no doubt that Mr. Nona communicated with the shooters and informed them of the deceased’s location in the bar. It is most likely that the perpetrators deliberately waited until Mr. Nona was safely leaving the scene before entering the bar.

The Post Offence Conduct of the Defendants

107I find that some of the post offence conduct of both accused is probative of their assistance in carrying out a plan which targeted the victim:

i. Both defendants attempted to obtain new cell phones shortly after the murder.

ii. Mr. Segovia San Hueza attempted to flee the jurisdiction after the arrest of Mr. Nona.

Obtaining New Cellphones

108Mr. Nona had used the same cell phone and service plan for nearly two years before the homicide but changed both four days afterward. He traded in the phone he carried on April 21 and expressly agreed that it could not be retrieved after the exchange. Ms. Monaco argues that the phone remained accessible to police at the store and could have been obtained with a warrant. While that may be true, either Mr. Nona or the phone store would almost certainly have wiped the data when the phone was turned in. In my view, Mr. Nona most likely believed that returning the phone to Rogers placed any data which had been recorded on the phone beyond the reach of police.

109A week after the homicide, Mr. Segovia San Hueza sent a message to his aunt urgently asking her to get him a new cell phone. There is nothing in his messages, or in the balance of the evidence, that explains why he needed a new phone so urgently at that time.

110Both defendants, through their counsel, admitted to being mid-level dealers in various drugs, including cocaine. Messages retrieved from Mr. Segovia San Hueza’s phone indicate that they possessed a sophisticated awareness of police investigative methods and the evidentiary significance of digital communications. Their acquisition of new phones shortly after the killing was not coincidental.

111I find that the defendants’ coordinated efforts to obtain new phones shortly after the homicide support other evidence indicating that they were acting together to assist the perpetrators on April 21.

Mr. Segovia San Hueza’s Attempted Flight

112After the arrest of Mr. Nona, Mr. Segovia San Hueza frantically attempted to escape from Toronto to Yellowknife under a false name. He explained his reason for fleeing in a text message to a friend: “Like broski I’m acc trying to get out of here fam - Like this guy got knocked for a 1 - I’m next fam”.¹⁶ Mr. Segovia San Hueza’s desire to flee the jurisdiction supports a finding that he assisted in executing the plan which led to the murder of Mr. Khananisho.

113I acknowledge that caution is warranted in reaching this conclusion, as there are reasonable alternative explanations for Mr. Segovia San Hueza’s conduct:

i. He may have attempted to flee because he feared being wrongfully implicated in the murder due to his close association with Mr. Nona on April 21.

ii. He was aware that a large quantity of cocaine would be discovered when police searched the white Civic. Officers had observed him leaving that vehicle prior to Mr. Nona’s arrest, and Mr. Nona informed him that police were requesting his return for questioning. Given his significant criminal record, Mr. Segovia San Hueza likely anticipated detention if charged with possession of those drugs.

iii. It is possible that he fled for fear of being identified as the person who broke into a secure police facility to retrieve items from the impounded white Civic.

114A trier of fact is not required to conclude that guilt is the only possible inference from post-offence conduct in order to rely on it. Conduct such as flight may have multiple explanations. Determining whether flight indicates culpability is a matter of experience and common sense. The Supreme Court of Canada provided guidance on this issue in R. v. Calnen, 2019 SCC 6:

[145] Whether an inference is available is measured against what is reasonable and rational according to logic, human experience, and common sense. It is this combination which informs the determination of whether the impugned evidence makes the proposition more or less likely. This is an evaluative assessment, which is not defeated simply by listing alternative explanations. As long as the evidence is more capable of supporting the inference sought than the alternative inferences, then it is up to the fact finder, after considering all explanations, to determine what, if any, inference is accepted, and the weight, if any, to be provided to a piece of circumstantial evidence.

115I find that the most probable explanation for Mr. Segovia San Hueza’s urgent efforts to leave the jurisdiction was his fear that police had learned of his role in assisting the perpetrators to commit the murder. This conclusion is supported by the timing of his attempted flight—immediately after receiving confirmation that Mr. Nona had been arrested for murder—the intensity of his efforts, and his statement: ‘… trying to get out of here fam… Like this guy got knocked for a 1 – I’m next fam.’ In my view, this statement directly links his desire to flee to his joint actions with Mr. Nona, rather than to any of the other possibilities suggested.

Exculpatory Evidence Relied Upon by the Defence

116Defence counsel submit that there is exculpatory evidence, or gaps in the evidence, that raise a reasonable doubt as to whether the defendants assisted the perpetrators in committing the murder:

i. Mr. Holt argues that Mr. Segovia San Hueza’s act of retrieving the gun from the white Civic demonstrates that he was not a party to the homicide. He submits that, had Mr. Segovia San Hueza knowingly participated in a plan to commit first-degree murder, he would not have undertaken the significant risks involved in breaking into a police facility, entering a sealed vehicle, and retrieving a loaded handgun.

ii. Both defendants rely on evidence that they continued to engage in drug trafficking during the two weeks following the murder, submitting that this conduct is inconsistent with any consciousness of guilt arising from participation in the offence.

iii. Ms. Monaco contends that Mr. Nona had a very friendly relationship with the deceased and had no motive to commit the offence.

Retrieving the Gun

117Mr. Segovia San Hueza broke into a secure police facility to retrieve his firearm from the white Civic. This was an extremely risky undertaking and many of Mr. Segovia San Hueza’s associates warned him against it. None were willing to assist. The firearm had not been used in the killing of Mr. Khananisho, and Mr. Segovia San Hueza undoubtedly knew this. Mr. Holt submits that Mr. Segovia San Hueza’s decision to break into enter the police impound lot raises a reasonable doubt as to his involvement in the homicide. No rational person who had recently participated in a murder would assume the risks inherent in breaking into a police facility. A person connected to the homicide would, in all likelihood, avoid any conduct that might attract police attention. Mr. Holt contends that this exculpatory inference should raise a doubt regarding Mr. Segovia San Hueza’s culpability.

118Mr. Segovia San Hueza’s messages disclose at least two motives for retrieving the firearm. First, he was certain that his fingerprints were on it and was adamant that he would not face a third conviction for possession of a firearm. Second, he expressed concern that Mr. Nona might be charged with possession of the gun, despite, according to Mr. Segovia San Hueza, “he had nothing to do with it.” Although his friends warned him that he was “too hot” to attempt the retrieval, Mr. Segovia San Hueza was confident that he would succeed and, when others refused to assist, he challenged their loyalty to Mr. Nona.

119While I accept that breaking into the police lot was a risky act likely to attract police attention, this does not create any doubt in my mind regarding Mr. Segovia San Hueza’s role in assisting with the killing of Mr. Khananisho. Mr. Segovia San Hueza’s messages portray him as impulsive and immature. For example, he suggested to one friend at the time of Mr. Nona’s arrest that they crash into a police vehicle or discharge a firearm to distract officers so he could retrieve the gun from the white Civic.¹⁷ He missed a carefully arranged attempt to flee to Yellowknife because he overslept. He ignored the advice of all his friends and associates not to attempt the retrieval. I do not regard Mr. Segovia San Hueza’s decision to break into the lot as having any exculpatory value. Rather, I attribute it to his impulsive behaviour and poor judgment.

120Mr. Segovia San Hueza’s messages do not reflect any indifference to the homicide. On the contrary, from the moment of Mr. Nona’s arrest, he was preoccupied with learning why Nona had been detained, whether he was being questioned, and why police had sealed the white Civic rather than immediately searching it. Once it was confirmed that Mr. Nona had been arrested for murder, Mr. Segovia San Hueza began making arrangements to flee.

Drug Trafficking After the Homicide

121Defence counsel rely on surveillance reports detailing the movements of Mr. Nona and Mr. Segovia San Hueza on May 1 and 2. These reports describe occasions when one or both drove to various locations in the GTA and had brief meetings with unidentified individuals, some of whom briefly entered their vehicle. Counsel submit that these observations demonstrate that the accused continued to engage in drug trafficking after the homicide. They argue that two inferences arise from this evidence:

i. The defendants’ actions on May 1 and 2 closely resemble their movements on April 21, supporting the inference that their activities on the day of the homicide were related to drug trafficking rather than murder; and

ii. It is unlikely that the defendants would openly engage in drug trafficking so soon after participating in a homicide, and the fact that they did so raises a reasonable doubt as to their culpability for the murder.

122As noted earlier in this judgment, there is no evidence that the defendants’ movements on April 21 were related to drug trafficking. There is no indication of any exchange between Mr. Segovia San Hueza and either occupant of the getaway vehicle in the Seniors’ Shelter parking lot. Nor is there anything in the messages or data extracted from Mr. Segovia San Hueza’s iPhone11 that pertains to drug trafficking on that date. Mr. Nona received nothing from Mr. Khananisho during their two meetings at the Avellino, and the only item he gave to the deceased was a $20 bill. The fact that the accused engaged in drug trafficking two weeks after the homicide does not alter my conclusions regarding their activities on April 21.

123The fact that the two accused were engaged in drug trafficking two weeks after the murder does not raise any doubt. It is undisputed that they had been involved in drug trafficking well before the homicide, and videos saved on Mr. Segovia San Hueza’s phone indicate that they had been successful in that enterprise. There is no evidence that their drug trafficking activities had previously attracted police attention, and their activities on May 1 and 2 would likely have gone unnoticed but for the surveillance initiated because of the murder. In my view, it is neither surprising nor significant that they resumed drug dealing two weeks after the homicide when they had no reason to believe that police regarded them as suspects.

The Absence of Motive

124There is evidence that Mr. Nona and the deceased were friends. On March 31, Mr. Nona was driving Mr. Khananisho in his father’s car when the latter was attacked. Their subsequent text exchange appears to have been friendly: Mr. Khananisho apologized for involving Mr. Nona in an unfortunate situation and assured him that he would pay for the damage to the vehicle. On April 21, during two meetings at the Avellino, they greeted each other warmly. Mr. Nona also called Mr. Khananisho five times between 8:51 p.m. and 9:19 p.m. that evening. Ms. Monaco submits that this evidence demonstrates that Mr. Nona was close friends with the deceased and that his calls and visits to the Avellino were motivated by concern for Mr. Khananisho’s safety. She argues that, far from having a motive to assist in his killing, Mr. Nona’s motive was to protect Mr. Khananisho.

125The Crown is not required to prove motive, however a proven absence of motive is an important circumstantial fact which may give rise to a reasonable doubt. It is for the trier of fact to decide if an absence of motive has been proven. The law in this area was summarized as follows in R. v. White, [1996] O.J. No. 2405:

[101] …The authorities to which we were referred in argument provide no definition of the expression "proved absence of motive". However, they do point out that there is a significant difference between absence of proved motive and proved absence of motive. We do not share the view of counsel for the appellants that evidence of a general nature regarding the friendship between an accused person and the deceased, standing alone, constitutes proved absence of motive. At best, such evidence in the present case did no more than reinforce the absence of evidence of proved motive, a subject that was specifically covered in the charge.

126In Lewis, Justice Dickson approved the following observation made by an American jurist:

The law does not require impossibilities. The law recognizes that the cause of the killing is sometimes so hidden in the mind and breast of the party who killed, that it cannot be fathomed, and as it does not require impossibilities, it does not require the jury to find it.

R. v. Lewis, [1979] 2 S.C.R. 821 at page 834

127I do not find that an absence of motive has been established in this case. Mr. Nona was a mid-level cocaine dealer, and his text exchange with the deceased following the March 31 shooting suggests that the deceased and his brother were also involved in the drug trade. In that exchange, Mr. Nona expressed concern for his safety, frustration that the deceased and his brother had contributed to his predicament, and a need for substantial funds to secure his protection. These messages indicate genuine apprehension and financial pressure. While Mr. Nona remained on good terms with the deceased thereafter, this does not preclude the possibility that he perceived an opportunity to resolve his jeopardy by assisting those who were targeting Mr. Khananisho. The evidence does not disclose why the deceased was attacked on March 31, what steps he took to address that situation, or whether Mr. Nona remained at risk on April 21. Motives in the drug trade are notoriously difficult to discern, and that is especially true here. The evidence falls well short of proving an absence of motive.

128I have considered the issue of motive and conclude that I cannot make any findings, for either the defence or the Crown, that would affect my assessment of the case. The evidence is too uncertain to permit any reliable inference.

Conclusion Regarding Assistance and Intention to Assist

129In a case based entirely on circumstantial evidence, the strength of an inference of guilt may be tested by considering the likelihood of coincidence. The trier of fact may reasonably ask if it is possible that all of the following occurred by chance:

• That Mr. Segovia San Hueza bought a new phone plan on the day of the murder and both accused sought to obtain new phones within a week of the murder.
• That approximately three hours before the murder, Mr. Segovia San Hueza and Mr. Nona stopped for 15 minutes at a location immediately south of where the killers later positioned their getaway car.
• That Mr. Segovia San Hueza met with at least two people across the street from Mr. Nona’s home, drove with them to the Seniors’ Shelter, then left the Shelter with one of those men in his car—and that man murdered a close associate of Mr. Nona less than 45 minutes later.
• That the killers entered the Angel’s Convenience Plaza at 9:21 p.m., and less than three minutes later, Mr. Nona and Mr. Segovia San Hueza arrived at the same plaza.
• That Mr. Nona left the Avellino at 9:37 p.m. and the killers entered the parking lot at 9:41 p.m..
• That Mr. Nona boarded an Uber at 9:44 p.m. and the killers entered the Avellino at 9:45 p.m.?”

130If the defendants were not involved in a plan targeting the deceased, all of these and other circumstances must have occurred by coincidence. In my view, that is not reasonably possible. The only reasonable inference from the totality of the evidence is that Mr. Nona was in communication with the perpetrators because he and Mr. Segovia San Hueza were assisting them in a plan which targeted Mr. Khananisho.

B. Proof of Knowledge of Intent to Kill

131The second element of the mens rea is proof beyond a reasonable doubt that the defendants knew that the principals intended to commit the offence of murder. The Crown relies on two aspects of the evidence to prove knowledge: (1) the defendants’ familiarity with the March 31 shooting; and (2) the degree of premeditation involved in the April 21st shooting. The Crown fundamentally submits that the level of planning and deliberation which was evident on April 21st would only have occurred if the anticipated offence was a murder.

Inferences Drawn from the March 31 Shooting

132The Crown submits that the events of March 31 would have conveyed to Mr. Nona and Mr. Segovia San Hueza that someone intended to kill Mr. Khananisho. If they agreed to assist in targeting him for a further attack, they must have known that the objective was to kill him.

133As a preliminary point, I have no doubt that Mr. Nona disclosed details of the March 31 shooting and the preceding events to Mr. Segovia San Hueza. Mr. Nona’s text messages with Mr. Khananisho on that date show he feared for his life. Mr. Nona undoubtedly shared this concern with his close friend, particularly since Mr. Segovia San Hueza had a handgun and carried it in the vehicle they used together.

134The evidence concerning the March 31 shooting was introduced through an agreed statement of facts. The Crown acknowledges that it could not prove beyond a reasonable doubt that the shooters intended to kill Mr. Khananisho on that day. However, the Crown maintains that Mr. Nona would have recognized the real possibility that either he or Mr. Khananisho could have been killed by any of the shots that passed through the cab of his vehicle. Having witnessed Mr. Khananisho being targeted in this manner, Mr. Nona must have understood that anyone seeking to target him in a future attack intended to kill him.

135I accept the premise of the Crown’s submission; however, in my view, the circumstances of the March 31 shooting leave open the remote but real possibility that its purpose was not to kill Mr. Khananisho but to threaten him in an extremely violent manner. If the assailants had intended to kill him, the opportunity was available. The fact that they fired across the cab of the vehicle rather than directly at Mr. Khananisho may reasonably be regarded as evidence that they did not intend to kill him.

136Mr. Khananisho’s subsequent text exchange with Mr. Nona supports this conclusion. While he expressed concern about the incident, there is no indication that he believed the shooters intended to kill him or that the situation could not be resolved. He cautioned Mr. Nona to avoid “the bar,” but did not suggest that he intended to conceal himself, and there is no evidence that he did so. On the contrary, he continued to frequent the Avellino bar after the March 31 shooting, despite the fact that the assailants had waited for him outside that club on the night of the attack.

137In my view, Mr. Nona might reasonably have concluded, based on the events of March 31 and Mr. Khananisho’s subsequent conduct, that those who targeted him on that date did not intend to kill him but rather to threaten him. Their reasons for doing so may or may not have been known to Mr. Nona. Accordingly, the fact that Mr. Nona assisted in targeting the deceased at the Avellino on April 21 does not inexorably lead to the conclusion that he knew the deceased would be killed. He might reasonably have believed that the assailants intended to intimidate him, as they had done on March 31.

The Degree of Premeditation

138The Crown submits that the degree of premeditation demonstrated by the defendants in committing the offence and in evading detection is consistent only with knowledge that the perpetrators intended to kill Mr. Khananisho. The evidence of premeditation includes:

i. Mr. Segovia San Hueza purchasing a new Rogers account on April 21 and using two previously unused accounts registered under false names on the day of the murder;

ii. The defendants jointly inspecting the location where the blue Civic would be abandoned and where the getaway vehicle would be positioned;

iii. Mr. Segovia San Hueza meeting with the occupants of the getaway car near 16 Bergamot, driving with them to the Seniors’ Shelter, and then transporting one of the shooters to rendezvous with the blue Civic;

iv. Mr. Nona’s efforts to identify the victim’s precise location within the Avellino and ensuring that he remained in that spot by giving him cash to continue playing on the same machine;

v. Mr. Nona’s communicating with the shooters to convey the deceased’s location in the bar; and

vi. Mr. Nona leaving the Avellino before the shooters arrived and seemingly making a conscious effort to establish an alibi by appearing on camera at a nearby plaza.

139The Crown argues that this level of premeditation is consistent only with knowledge that the victim was being targeted for murder. Common sense and experience indicate that offenders do not take such elaborate precautions merely to threaten, rob, or assault a victim. The only reasonable inference from the circumstantial evidence is that the defendants either knew the principals intended to kill Mr. Khananisho or were wilfully blind to that fact.

140In R. v. Briscoe, 2010 SCC 13, Justice Charron explained that wilful blindness acts as a substitute for actual knowledge:

21. Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.

141To rely on the doctrine of wilful blindness to establish mens rea for either accused, the Crown must prove beyond a reasonable doubt that the defendant’s suspicions regarding the perpetrators’ intentions rose to the point where he recognized the need for inquiry but deliberately chose not to inquire because he did not wish to know the truth.

142The evidence of knowledge is most compelling in relation to Mr. Nona. He was present when Mr. Khananisho was first targeted on March 31 and was responsible for identifying his location in the Avellino to the shooters moments before the killing. There is no evidence that Mr. Segovia San Hueza had any prior dealings with the deceased, and the evidence strongly suggests that his involvement arose solely from his association with Mr. Nona. If there is any doubt as to whether Mr. Nona knew the shooters’ intentions, Mr. Segovia San Hueza must benefit from the same doubt.

143I am certain that Mr. Nona was recruited by someone to target Mr. Khananisho on April 21, but there is no evidence identifying that person or persons, their relationship to the deceased, or what was said to Mr. Nona regarding their intentions. The deceased’s messages to Mr. Nona on March 31 suggest that the earlier shooting was motivated by financial circumstances, most likely debts related to drug trafficking. I cannot reasonably exclude the possibility that Mr. Nona believed the second targeting was also intended to exert pressure for repayment rather than to kill. He might reasonably have questioned why anyone would commit a murder in a public establishment in the presence of witnesses and multiple surveillance cameras.

144There is also some speculation required to link the two shootings. While it appears highly likely that those who attacked the victim on March 31 were also involved in the murder, there is no direct evidence to support that conclusion. The inference rests on the assumption that it is unlikely two unrelated individuals would attempt to kill the same person in such a public manner only three weeks apart. However, given the limited evidence about Mr. Khananisho’s background and activities, I cannot rule out the possibility that the two incidents were unconnected. More than one person may have had a motive to kill Mr. Khananisho.

145Although I acknowledge that there is substantial evidence of Mr. Nona’s premeditation on April 21 and his efforts to eliminate traces of his involvement, I am not satisfied beyond a reasonable doubt that he knew the perpetrators intended to commit murder. In the absence of direct evidence of his knowledge, I find it reasonably possible that he believed the perpetrators intended to commit an offence similar to the March 31 shooting. While such an offence would not be as grave as murder, it would still prompt a significant police investigation and, if the responsible parties were identified, serious consequences would follow. In those circumstances, it would not be unreasonable to take steps to evade detection, such as positioning a getaway car.

146The more difficult issue is whether the Crown has established, beyond a reasonable doubt, that Mr. Nona appreciated the necessity of inquiring into the perpetrators’ intentions and consciously refrained from doing so because he did not wish to know the answer. To make such a finding would require speculation about conversations not in evidence. The record does not reveal who recruited Mr. Nona to assist in the plan, the motivations of that individual, what was communicated to Mr. Nona by the principals, or what he was told by the deceased. It is reasonable to infer that Mr. Nona and Mr. Khananisho continued to discuss the March 31 shooting after their text exchange on that date. Mr. Khananisho, however, appeared unconcerned for his safety, as evidenced by his continued attendance at the Avellino. There is no evidence that Mr. Nona was concerned for his friend’s wellbeing. While it is clear that Mr. Nona ought to have entertained suspicions when asked to target Mr. Khananisho on April 21—and a reasonable person would undoubtedly have recognized the need to make inquiries—the Crown must prove that Mr. Nona subjectively appreciated that need. In my assessment, the evidence falls just short of establishing that fact.

147I am left with a reasonable doubt as to whether Mr. Nona knew of, or was wilfully blind to, the perpetrators’ intention to kill Mr. Khananisho. The evidence suggests that Mr. Nona was Mr. Segovia San Hueza’s sole source of information regarding the perpetrators’ motivations, and the same doubt therefore applies in Mr. Segovia San Hueza’s case. Accordingly, I must acquit both accused on the charge of first-degree murder.

C. The Basis of Liability for Manslaughter Pursuant to Section 21(2)

148Having found that there is a reasonable doubt whether either of the defendants knew that the perpetrators intended to kill the victim, I turn to the Crown's alternative theory which rests on section 21(2) of the Criminal Code. The operation of that section was recently described in R. v. Mohamed, 2025 ONCA 611:

Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[41] Section 21(2) operates differently than s. 21(1). Whereas s. 21(1) captures those who participate in, aid in or abet a specific crime, s. 21(2) is much broader in scope. It extends liability to those individuals who are not principals, aiders or abettors to offences. It applies to situations where the accused has agreed with at least one other to commit an offence and, while carrying out that agreed-upon unlawful purpose, at least one or more of the participants to the original agreement (but not the accused) commits a different offence. Section 21(2) will apply if the accused knew (or, in the case of offences not requiring specific intent, ought to have known) that one of the participants to the agreed-upon unlawful purpose would likely commit the incidental offence while pursuing the common unlawful purpose. Therefore, s. 21(2) extends responsibility for incidental offences – offences other than the offence the accused originally agreed to participate in – provided that the incidental offence is committed “in carrying out” the originally-agreed-upon unlawful purpose and the accused had the requisite degree of mens rea: R. v. Cadeddu, 2013 ONCA 729 at paras. 50-52; R. v. Simon, 2010 ONCA 754 at paras. 25, 40-42 leave to appeal refused, [2010] S.C.C.A. No. 459.

[42] Accordingly, s. 21(2) liability breaks down nicely into three elements, categorized as: (1) agreement (the original unlawful purpose); (2) offence (the offence committed that is incidental to the originally-agreed-upon unlawful purpose); and (3) knowledge (subjective or objective foresight of the incidental offence).

[45] As for knowledge – the mens rea component of s. 21(2) – the accused must have the requisite state of mind with respect to the incidental offence. In the context of s. 21(2), that state of mind demands proof of foresight of the probability – meaning likelihood – of the incidental offence being a consequence of carrying out the original common unlawful purpose. Although s. 21(2) provides both a subjective and objective basis – “knew or ought to have known” – for establishing the requisite foresight, where subjective knowledge is the only legally- and constitutionally-sufficient basis upon which to establish mens rea (e.g., in the case of murder), only subjective knowledge of the likelihood of the commission of the incidental offence will do: R. v. Jackson, [1993] 4 S.C.R 573, at p. 583; R. v. Srun, 2019 ONCA 453, 146 O.R. (3d) 307, at para. 63.

(1) Agreement to an Original Unlawful Purpose

149For the reasons already outlined, I find that both accused agreed to assist the shooters in carrying out an unlawful act directed at the deceased. I cannot determine with certainty the precise offence they intended. The object may have been to threaten, rob, assault, extort, or even kidnap the victim. The level of planning and preparation for escape leaves no doubt that the intended offence was serious, likely to attract police attention, and to carry significant criminal consequences if discovered. The Crown is not required to prove the exact offence originally contemplated, provided it establishes that the accused knew or ought to have known that a probable consequence of pursuing the common purpose was the commission of a dangerous act that a reasonable person would recognize as creating a risk of bodily harm beyond the trivial or transitory: see R. v. Gong, 2023 ONCA 230 at paras. 40–41 and 47. Each of the unlawful purposes listed above meets this standard.

(2) An Incidental Offence

150There is no dispute that the shooters committed the offence of murder. The Crown has proven beyond a reasonable doubt that the murder occurred in the course of carrying out the initial unlawful agreement—whether to rob, extort, kidnap, assault, or threaten the victim—and that it was connected to that common purpose: see R. v. Mohamed at para. 44.

(3) The Knowledge Requirement

151As previously indicated, I am not satisfied beyond a reasonable doubt that either accused knew the perpetrators intended to kill the victim. However, a reasonable person would have foreseen that a probable consequence of carrying out the original common purpose was the commission of an inherently dangerous act creating a risk of bodily harm to the deceased that was neither trivial nor transitory. I reach this conclusion on the totality of the evidence and, in particular, the following facts:

• Mr. Nona had been in the vehicle with the deceased on March 31 and was aware that the deceased had recently been the target of an extremely violent attack.
• Mr. Nona and Mr. Segovia San Hueza shared a relationship of trust. I have no doubt that Nona informed Mr. Segovia San Hueza of the events of March 31, and that Mr. Segovia San Hueza was aware Mr. Khananisho had recently been the target of a shooting.
• A reasonable person in the defendants’ position would have recognized that those targeting Mr. Khananisho on April 21 likely shared the intentions as those who nearly killed him on March 31.
• On the afternoon of April 21, Mr. Segovia San Hueza took steps to hide evidence of what he planned to do later that night. I find that he did so because he knew that he would be engaging in conduct which was inherently dangerous, would create at least a risk of bodily harm to the deceased, and would trigger a serious police investigation.
• Mr. Nona and Mr. Segovia San Hueza jointly planned the perpetrators’ escape following their anticipated encounter with the deceased at the Avellino. The accused were aware the perpetrators intended to commit an act during that encounter which would immediately attract police attention and required careful preparation to avoid apprehension. Such planning is consistent only with an awareness that the deceased was being targeted for a serious offence that was inherently dangerous and likely to cause bodily harm
• Mr. Nona left the Avellino immediately before the perpetrators arrived, which indicates that he knew a serious offence was imminent and recognized that he should not be present when it occurred.

152All essential elements of manslaughter have been proven beyond a reasonable doubt in respect of both accused. Accordingly, I find Mr. Nona and Mr. Segovia San Hueza guilty of manslaughter as an included offence on the indictment for murder.

Footnotes

1. 1"Pops" was Mr. Khananisho's nickname.
2. 2Exhibit 26 – Call detail records for 437-999-8785
3. 3Exhibit 24 - Call details records for 647-290-7815
4. 4Exhibit 24.
5. 5R. v. Snache, 2023 ONSC 2255 at para. 67-71.
6. 6Agreed Statement of Facts - Appendix at PDF Page 1185 of 1266 – Google Map image showing GPS location of Mr. Segovia San Hueza from 8:38 p.m. to 8:54 p.m..
7. 7This concession was based on the similarity of the clothing of the male getting into the white Civic and the second shooter as seen in video entering the Avellino Club. The points of similarity include: (1) a white Nike Swoosh on the left pant leg; (2) black shoes with reflective markings near the ankle; (3) all black clothing and white gloves. The identification is confirmed by other circumstantial evidence.
8. 8Exhibit 17(r)
9. 9Agreed Statement of Facts - Appendix at PDF Page 389 of 1266
10. 10Agreed Statement of Facts - Appendix at PDF Page 627 of 1266
11. 11Agreed Statement of Facts - Appendix at PDF Page 635 of 1266
12. 12Agreed Statement of Facts - Appendix at PDF Page 852 of 1266
13. 13Agreed Statement of Facts - Appendix at PDF Page 868 of 1266
14. 14Agreed Statement of Facts - Appendix at PDF Page 967 of 1266
15. 15Appendix to ASF at pages 977-986.
16. 16Appendix to Agreed Statement of Facts - PDF page 868 of 1266
17. 17Appendix to Agreed Statement of Facts - PDF page 757–760 of 1266