CITATION: R. v. M.M., 2026 ONSC 4031
COURT FILE NO.: CR-1607-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
M.M.
S. Town and B. Butler, Counsel for the Crown
K. Dulysh and C. Ward, Counsel for the Young Person M.M.
HEARD: March 17, 18, 20, 23, 24, 25,
and 26, 2026
CONTENTS
Overview.. 3
General Legal Principles. 3
Presumption of innocence. 4
Reasonable doubt 4
Circumstantial evidence. 4
The W.(D.) framework. 5
The Evidence. 6
Admissions. 6
The video surveillance evidence. 7
The surveillance video from inside Overtime. 7
The surveillance videos from outside Overtime. 9
The surveillance videos from 304 Elizabeth Street 10
The surveillance video from M.M.’s apartment building in Scarborough. 11
Witness testimony. 11
Storm Hogan. 13
Jamie-Lyn Duggan. 15
Brooke Kennedy. 16
Constable Vitali and the dog track. 17
Matthew Taylor 19
M.M. 19
Analysis. 36
Issue 1 - Has the Crown proven M.M. committed first-degree murder?. 36
Issue 2 – Should the murder be excused because it was committed under duress?. 38
Legal excuses. 39
Duress. 39
Did N.S. threaten to kill M.M. and his family?. 42
Did M.M. reasonably believe that N.S. would carry out this threat?. 42
Did M.M. have no safe way to avoid the harm N.S. threatened?. 43
Was there a close temporal connection between the threat and the harm threatened?. 46
Was M.M. a party to a conspiracy or association whereby he would be subject to compulsion and did M.M. actually know that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association?. 48
Issue 3 – Should section 17 of the Criminal Code be struck down as it applies to murder?. 50
Issue 4 - Did M.M. possess a firearm with intent to commit an offence?. 50
Inside the bar 51
Outside the bar 51
Issue 5 – If M.M. possessed the firearm with the intent to commit an offence, should he be excused from criminal liability on the basis of duress?. 51
Conclusion. 51
REASONS FOR JUDGMENT
STOTHART J.
Overview
1M.M. is charged as a young person on an indictment before the court with first-degree murder, along with other charges, in the killing of Joema (“Joe”) Rey Cabigon on April 21, 2023 in Sudbury, Ontario. M.M. was 16 years old at the time of the killing and was a “young person” as defined by the Youth Criminal Justice Act, S.C. 2002, c.1, in force April 1, 2003.
2It is admitted that on April 21, 2023, M.M. walked into the Overtime Sports Bar and Grill in Sudbury, Ontario, and shot Joe Cabigon in the back of the head, killing him instantly. At the end of the trial, it was agreed that the Crown had proven M.M.’s guilt, beyond a reasonable doubt, with respect to counts 4, 5, 6 and 7 and that convictions should be entered. It was agreed that an acquittal should be entered on count 3.
3What remains to be decided is whether the Crown has proven M.M.’s guilt beyond a reasonable doubt on the first two counts in the indictment, which are the first-degree murder of Joe Cabigon (count 1) and carrying a handgun for the purpose of committing an offence (count 2).
4The defence submits that the Crown has not proven the essential elements of first-degree murder. It concedes that second-degree murder has been established on all of the evidence.
5The defence submits that M.M.’s actions should be excused on the basis of duress. If excused by duress, M.M. would be found not guilty of counts 1 and 2.
6Prior to the commencement of trial, the defence brought an application seeking to strike down s. 17 of the Criminal Code which precludes the excuse of duress for the offence of murder. I received submissions and reserved my decision. I will address the constitutional challenge at the end of these reasons.
General Legal Principles
7I will begin my reasons by setting out some general legal principles that apply to all criminal trials.
Presumption of innocence
8M.M. began this trial presumed to be innocent of the charges on the indictment. That presumption remains with him unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden, and it never shifts. M.M. has no obligation to establish his innocence. This an important and long-standing principle of our criminal law that is constitutionally entrenched in s.11(d) of the Canadian Charter of Rights and Freedoms: Regina v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665 at pp. 682-683, 687.
9In this case, the Crown must prove, beyond a reasonable doubt, each and every element of the offence of first-degree murder (count 1) and the offence of possession of a firearm with the intent to commit an offence (count 2). There is no burden on M.M. to prove his innocence. He does not have to prove anything in a criminal trial.
10The Crown must also disprove any available defences or excuses beyond a reasonable doubt. With respect to the excuse of duress, if it is available in this case, and there is an air of reality to the excuse, the Crown must disprove one or more of the essential elements of the excuse on a reasonable doubt standard. If the Crown proves, beyond a reasonable doubt, that any one of the elements of duress is inapplicable, the excuse of duress fails: R. v. Watson, 2024 ONSC 6781, at para. 49; R. v. Norman, 2021 ONCA 321 at para. 25; R. v. Aravena, 2015 ONCA 250, 20 C.R. (7th) 131, leave to appeal refused, [2015] S.C.C.A. No. 497, at para. 27 (“Aravena”)
11If the excuse of duress is available in law and the Crown fails to prove beyond a reasonable doubt that any of the essential elements are inapplicable, an accused is entitled to an acquittal: R. v. Norman, at para. 25.
Reasonable doubt
12Reasonable doubt has been described as a doubt that is not far-fetched or imaginary, or frivolous. It is not based on any sympathy or prejudice. It is based on reason and common sense. It is logically derived from the evidence or the absence of evidence. A reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. However, the Crown is not required to prove anything with absolute certainty, because that is nearly impossible to do: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.
13The burden of proof beyond a reasonable doubt remains squarely with the Crown at all times and any reasonable doubt, based on the whole of the evidence, must result in an acquittal. Regina v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R., at para. 8.
Circumstantial evidence
14In this case, I have received and reviewed various surveillance videos which provide both direct and circumstantial evidence surrounding the shooting.
15Where the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact to be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20 (“Villaroman”).
16In determining whether the circumstantial evidence meets the required standard of proof, a trial judge must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 37 (“Lights”).
17A trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded in logic and experience. Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence. However, the Crown does not have negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with the accused’s innocence: Villaroman, at paras. 37-38; Lights, at para. 38.
18A trial judge must be cautious and not to try to “fill in the blanks” or bridge gaps in the evidence to support inferences of guilt: Villaroman, at para. 26.
19It is incumbent upon a trial judge to explore other reasonable inferences or plausible theories which are inconsistent with guilt, weigh them, and provide a rational explanation why they are rejected: Villaroman, at para. 37.
The W.(D.) framework
20M.M. has testified at this trial and denied that he had the intent to commit first-degree murder. He has testified that he had no choice but to kill Cabigon, because he had been threatened by a man he knew as “Pedro” (who has since been identified as being N.S.) that if he did not kill Cabigon, he and his family would be killed.
21I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, that where credibility is important, reasonable doubt applies to that issue. I do not have to firmly believe or disbelieve any witness or set of witnesses. Further, I am to approach my assessment of the competing evidence at trial along these lines:
First, if I believe the evidence of the accused, I must acquit;
Second, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit; and
Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
22The principles in W.(D.) apply to all of the evidence, including evidence other than that of the accused: R. v. B.D., 2011 ONCA 5, 266 C.C.C. (3d) 197, at para. 114.
23The purpose of using this methodology is to ensure that the burden of proof beyond a reasonable doubt never shifts. It always remains on the Crown. The W.(D.) methodology is helpful in ensuring that a trier of fact keeps the burden squarely on the Crown: R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 22.
24An accused’s evidence should not be considered in isolation but in the context of all the evidence. If an accused’s account is believed or leaves the court with a reasonable doubt about what happened, within the context of the totality of the evidence, they must be found not guilty. Put differently, the trial judge must consider whether the evidence, as a whole, establishes the accused’s guilt beyond a reasonable doubt: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23.
25Reasonable doubt applies to credibility and reliability assessments such that if the evidence the Crown adduces does not rise to the level required of a criminal conviction, even where the evidence of an accused is disbelieved, the accused must be acquitted. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt: R. v. Kruk, 2024 SCC 7, 433 C.C.C. (3d) 301, at para. 62.
The Evidence
26Many of the factual circumstances surrounding the shooting are not in dispute.
27The Overtime Sports Bar and Grill (“Overtime”) is a sports bar and restaurant that in September 2023 was located on Notre Dame Avenue, in Greater Sudbury. At the time, Overtime consisted of a large restaurant area where patrons ordinarily consumed meals, and a smaller bar area where patrons ordinarily consumed alcohol but could also consume meals.
Admissions
28An extensive agreed statement of facts was filed at trial. It is agreed that on April 21, 2023, three males were dropped off at Overtime at 8:49 p.m. Those three males were M.M. and two other males, N.S. (who was otherwise known as “Pedro”) and an unidentified male known as “T.K.”.
29When the three males entered Overtime, N.S. was wearing a blue satchel that contained a concealed firearm. At one point during the evening, N.S. gave the blue satchel containing the firearm to M.M. When the three males eventually left Overtime, N.S. had the blue satchel back in his possession.
30When the three males left Overtime, they walked southbound along Notre Dame Avenue until they reached the sidewalk in front of a Tim Hortons. At that point M.M. left the group and began walking back, northbound, to Overtime, wearing the blue satchel containing the firearm. N.S. and T.K. were picked up by a red truck and were driven away.
31It is agreed that M.M. walked into Overtime, walked behind Cabigon, and shot him in the back of the head with a handgun, killing him.
32There are also other agreed facts that I will refer to when discussing some of the witness’ evidence.
The video surveillance evidence
33At the time of the shooting, Overtime had several surveillance cameras inside the establishment that covered some areas of the bar and restaurant. In addition, there were several businesses that ran southbound along Notre Dame Avenue that had outside surveillance cameras. In the end, many of the events leading up to, during, and after the shooting were captured by these surveillance cameras.
34There were limitations to the surveillance video evidence. The videos from inside Overtime had a time stamp that was one hour off. It is agreed by the parties that the time stamp on these videos reflects a time that is one hour earlier than the actual time. For the purposes of this decision, I will refer to the actual time, as opposed to the time reflected in the time stamps. The videos from inside Overtime were also not continuous and skipped a few seconds from time to time. The video surveillance system inside Overtime did not capture sound.
35Outside surveillance videos from various businesses depicting some of the events on April 21, 2023 were retrieved by the police. The limitation of these videos is that they captured only the areas covered by the outside cameras. There are other outside areas that were not captured by surveillance videos. The outside surveillance videos did not capture sound.
36I also received surveillance videos from a residence on Elizabeth Street, where M.M. had been staying prior to the shooting. It is agreed that only some of the surveillance videos were provided to the police by the owner of this building. These videos did not capture sound. Finally, I received surveillance videos from M.M.’s apartment building from the day after the shooting. These surveillance videos did not capture sound.
37It is agreed that the surveillance videos accurately depict the events recorded. The video surveillance evidence provides direct visual evidence of what was captured by the surveillance camera. The video surveillance evidence also provides circumstantial evidence from which inferences can be drawn from the actions depicted in the recordings.
38The following is a summary of what was captured by the surveillance videos.
The surveillance video from inside Overtime
• The arrival of M.M., N.S. and T.K. at Overtime at 8:50 p.m.
39The surveillance video from inside Overtime on April 21, 2023 shows M.M., along with N.S. and T.K., entering the bar area at around 8:50 p.m. The group sat in the bar area, on the east side, closest to the exit. When the males entered the bar, M.M. was carrying a plastic bag and N.S. was wearing a blue crossbody satchel. It is agreed that the plastic bag contained drugs and the blue satchel contained a firearm.
40In the surveillance video M.M. can be observed wearing blue pants, a dark hooded sweatshirt, a blue ballcap, and white shoes. T.K. wore light grey sweatpants and a light grey hooded sweatshirt. N.S. wore dark pants, a blue long-sleeved shirt, and a blue medical mask over his face.
41For about 50 minutes, N.S., M.M. and T.K. sat at the bar and conversed with three other patrons (identified as Wayne Losier, Justin Pothier, and Justin Shallot) who were sitting to their left, on the south side of the bar. At other times M.M., N.S. and T.K. appeared to be looking at their cell phones. At various times, M.M., N.S. and/or T.K. left the bar area, either on their own, or together, and then returned.
• The arrival of Cabigon and Hogan at Overtime at 9:41 p.m.
42At around 9:41 p.m. Joe Cabigon and Storm Hogan entered the bar. When they entered, N.S. stood up and greeted Hogan. The two shook hands, and N.S. turned to M.M. and T.K. Hogan shook hands with M.M. and T.K. and then started to walk away. As Hogan and Cabigon were walking away, they looked over at Losier. Hogan and Cabigon walked over to Losier, shook hands, and had a brief conversation. During the conversation Losier and Hogan laugh. Hogan and Cabigon then walked over to the north side of the bar, closest to the restaurant, and sat down.
43The area where Hogan and Cabigon sat at the bar is not captured by the surveillance video. The seats they sat in are just off camera. Some movements can be observed reflected in a window directly across from where they were sitting. Cabigon was wearing a white hooded sweatshirt with a vest. You can see the white reflection from Cabigon’s white sweatshirt in the window across from where he was sitting.
• The argument sometime between 9:58 p.m. and 10:10 p.m.
44About 15 minutes after Hogan and Cabigon arrived, N.S. approached where Hogan and Cabigon were sitting. Shortly after this, around 9:59 p.m., M.M. walked over to the same area. According to Hogan, N.S. made a comment that seemed rude. Cabigon responded, and then the two got into a “silly drunk argument”.
45Eventually M.M. walked back over to where he had been sitting with T.K. M.M. appears to watch what was going on in the area where Hogan, Cabigon and N.S. are located. M.M. and T.K. then return to watching their cell phones.
46At approximately 10:03 p.m., N.S. walked back to where M.M. was sitting and handed him the blue crossbody satchel containing the gun. M.M. put the bag over his shoulder, with the bag sitting on his right side. The surveillance video shows N.S. talking into M.M.’s ear and repeatedly patting him on the shoulder. N.S. then went back to where Hogan and Cabigon were sitting. M.M. appears to be watching the area where Hogan, Cabigon and N.S. are located. As M.M. is watching, he places his hand inside the blue satchel containing the firearm.
47At approximately 10:04 p.m. N.S. walked back to M.M. N.S. can be observed talking into M.M.’s ear, tapping his shoulder a few times, and then he gives M.M. a half-hug. While this is going on, M.M. puts his hand back into the blue satchel containing the firearm. T.K. is then observed coming from the area where Hogan and Cabigon were sitting, and N.S. talks to him and points in the area where Hogan and Cabigon were sitting.
48At approximately 10:05 p.m., N.S. went back to the area where Hogan and Cabigon were sitting. T.K. followed him. M.M. appears to be watching with his hand in the blue satchel. M.M. then got up and walked over to the area where Hogan, Cabigon, N.S. and T.K. were congregated.
49M.M. returned to the area where he had been sitting and put the plastic bag containing the drugs by his feet. M.M. appears to watch the area where Hogan, Cabigon, and N.S. are located for a few seconds and then goes back to the group.
50At approximately 10:06 p.m., restaurant staff directed the entire group (N.S., M.M., T.K., Cabigon and Hogan) to the exit. At approximately 10:07 p.m., M.M. went back into the bar briefly and grabbed the plastic bag with the drugs.
51At approximately 10:07 p.m. Cabigon came back into the bar and went back to where he had been sitting. Hogan, N.S. and M.M. then came back into the bar and stood near the entrance. N.S. can be observed talking to Hogan. N.S. is now wearing the blue satchel. Hogan, N.S. and M.M. then leave again. At approximately 10:10 p.m., Hogan came back into the bar and walked over to where he had been sitting before.
• The shooting at 10:24 p.m.
52The surveillance video shows M.M. walking into the bar at approximately 10:24 p.m. M.M. had his hood up over his head, and his hand inside the blue satchel. M.M. walked directly to where Cabigon and Hogan were sitting. M.M. does not look around and stares straight ahead. The video depicts a flash of light. You can see the reflection of Cabigon’s white sweatshirt in the window, and he appears to fall to the ground. M.M. then walked back towards the exit. As he did so, he turned back, raised the blue satchel again, and pointed it in the direction of Cabigon and Hogan. M.M. then left the bar.
The surveillance videos from outside Overtime
• After the group is kicked out of the bar- 10:10 p.m. to 10:19 p.m.
53The surveillance video shows N.S., T.K. and M.M. walking away from the bar at approximately 10:10 p.m. The group appears to be talking. At one point, T.K. takes the plastic bag from M.M. At another point, N.S. and T.K. stop and appear to be talking while M.M. is walking behind them. At times, N.S. can be observed waving his arms. The group walk southbound along Notre Dame Avenue, until they reach a sidewalk area in front of a Tim Horton’s store.
54The video surveillance from the Tim Horton’s store shows the three walking along the sidewalk, along Notre Dame Avenue. At approximately 10:18 p.m., the group stops in the general area in front of the store on the sidewalk. Because the group are on the sidewalk, across the parking lot, it is difficult to see what they are doing. Several vehicles parked in the parking lot block the view. You can observe the males walking back and forth on the sidewalk for a short period of time.
55At approximately 10:19:23 p.m., M.M. can be seen walking alone on the sidewalk, walking northbound, towards Overtime. M.M. stops and crouches down for a moment and then gets up and starts walking again. At the same time N.S. and T.K. walk into the Tim Horton’s parking lot. It is agreed that they are picked up by a red truck and driven away. The red truck can be observed leaving the parking lot at approximately 10:20:58 p.m. The red truck turns northbound on to Notre Dame Avenue and is not seen again.
• M.M. returns to Overtime and shoots Cabigon – 10:19 p.m. to 10:24 p.m.
56The surveillance videos from various businesses captures images of M.M. walking back to Overtime. M.M. appears to walk a similar route the group had just travelled, walking through various parking lots adjacent to Notre Dame Avenue. The surveillance videos show that M.M. now has a hood covering his head, and he is wearing the blue satchel across the right side of his body. The surveillance video depicts several businesses in the area, including a Bingo hall and a MacDonalds, on the other side of Notre Dame Avenue. Notre Dame is a busy street. The video surveillance shows many cars driving up and down the street, including a city bus, as M.M. walked back to Overtime.
• M.M. runs away from Overtime – 10:24 p.m.
57The surveillance videos from various businesses show M.M. leaving Overtime at approximately 10:24 p.m. M.M. jogs southbound, through various parking lots. M.M. then runs through a parking lot and into a wooded area.
The surveillance videos from 304 Elizabeth Street
58On April 25, 2023, the police obtained surveillance video from an address at 304 Elizabeth Street. This is an address that had been saved on a cellphone found during a dog track. It is agreed that this was the cellphone in M.M.’s possession on the night of the shooting.
59It is admitted that the police obtained video surveillance from April 17, 2023, depicting N.S., T.K. and M.M. leaving Elizabeth Street wearing the same clothing that they had on at the Overtime bar the night of the homicide.
60Other surveillance videos from Elizabeth Street depict M.M. either leaving or returning to the address on April 10, 14, 15 and 17, 2023. M.M. is usually by himself. At times he eats food.
61On April 10, 2023, M.M. can be observed walking with N.S. M.M. is wearing a blue satchel across his body. It is agreed that this is the same blue satchel from the night of the shooting. It is agreed that on the date of this video, the blue satchel contained a gun.
62The police released still photos from Elizabeth Street to the media in an effort to identify the three individuals. It is admitted that on April 28, 2023, M.M.’s father contacted the police to advise that one of the suspects in the photo was his son, M.M., and that M.M. had returned home on April 23rd. On April 29, 2023, M.M. was arrested at his parents’ residence in Toronto.
The surveillance video from M.M.’s apartment building in Scarborough
63Video surveillance was tendered at trial that shows M.M. arriving at his home in Scarborough at approximately 8:30 a.m. on September 23, 2023. M.M. enters the vestibule and pushes a buzzer. He is wearing different clothing, different shoes, and a blue medical mask over his face. M.M. pushes a button and waits about two minutes before an unidentified man attends and lets him into the building. The next video shows M.M. exit an elevator, walk down a hall, and knock on a door. After about a minute, M.M. is let into the apartment.
Witness testimony
64A trial judge may believe some, none, or all of the testimony of any witness, including an accused: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 11-12.
65To be relied on, a witness’ evidence on an issue must be both credible and reliable Assessments of credibility and reliability are amongst the most difficult for a trial judge: R. v. Kruk, at para. 81.
66Credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue: R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), at para. 41
67A witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability. A credible witness may give unreliable evidence.
68In R. v. M.A., 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 12-15, Watt, J.A. reviewed some of the applicable principles for assessing the credibility of a witness. Some of those principles which are applicable to this case are:
Every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to the criteria appropriate to his or her mental development, understanding and ability to communicate.
The presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of the witness’ age at the time of the events about which they are testifying occurred.
One of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what he/she has said on other occasions, whether or not under oath. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate carelessness with the truth about which the trier of fact should be concerned.
A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses.
69While inconsistencies on minor matters or small points of detail are normal and are to be expected, a trial judge must be careful not to improperly discount major inconsistencies by labeling them as “peripheral” and thus avoid the duty to address and weigh them: R. v. D.H., 2016 ONCA 569, 338 C.C.C. (3d) 251, at paras. 37, 50, 69-71; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 17.
70Reasonable doubt applies to credibility and reliability assessments such that if the evidence the Crown adduces does not rise to the level required of a criminal conviction, even where the evidence of an accused is disbelieved, the accused must be acquitted. Any aspect of the accepted evidence, or the absence of evidence, may ground a reasonable doubt. Where a trial judge does not know whether to believe the accused’s testimony, or does not know who to believe, the accused is entitled to an acquittal: R. v. Kruk, at para. 62.
71The Crown called several witnesses who were present at Overtime in the time leading up to and during the shooting. I also received evidence about items that were seized by the police, including items discarded by M.M. after the shooting. M.M. testified and the defence also called Matthew Taylor as a witness.
72I found that the Crown witnesses and the defence witness, Matthew Taylor, provided credible evidence. I found that they were all trying their best to describe the events of April 21, 2023 in detail. No significant issues related to their credibility arose in cross-examination.
73I found that the reliability of some of their evidence was impacted by the passage of time. In particular, I found that the passage of time impacted some of the evidence of Storm Hogan, and much of the evidence of Matthew Taylor. I will describe this in more detail when I discuss their evidence.
74In assessing the credibility and reliability of a witness’ evidence a court must bear in mind that people react to events differently. Courts must avoid resorting to stereotypical thinking about how people should or should not react to traumatic events: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 121.
75In this case I have considered the evidence of the witnesses, including M.M., individually and within the context of the evidence as a whole. I have considered whether their evidence is internally consistent and whether it is contradicted by something they have said in the past. I have also considered whether their evidence is contradicted by others, and if so, whether that contradiction leaves me with a reasonable doubt as to the accused’s guilt. I have considered the plausibility of their evidence. I have considered whether their evidence contained embellishment or exaggeration, however I am mindful that a witness’ credibility is not enhanced by the lack of embellishment or exaggeration: R. v. Kiss, 2018 ONCA 184, at para. 53.
76I have carefully observed and listened to the witnesses as they testified, including M.M. I am mindful that a person’s demeanor must be approached with great caution. People come from different backgrounds and experiences which may impact on the way they testify or present themselves in court. Any number of factors may condition the way a person speaks, how they speak, their facial expressions when doing so and their body language. I am both mindful and respectful of the principle that a witness's demeanor cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. A. (A.), 2015 ONCA 558, [[2015] 1 S.C.R. 14? no—original omitted in html not to alter] 327 C.C.C. (3d) 377, at para. 131; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), at pp. 313-14.
Storm Hogan
77Storm Hogan testified that his girlfriend worked at Overtime and he regularly frequented the establishment. On the evening of April 21, 2023, he went to Overtime with his good friend Joe Cabigon. It was the second time they had been at Overtime that day. Hogan had spent most of the day hanging out with Cabigon.
78Hogan testified that when they arrived at Overtime that evening a male approached him to say “hi”. Hogan did not know the male’s name but had seen him once before at Overtime about a month before. The male introduced Hogan to two other males that were with him. Hogan testified he had not met the other two males before. It is agreed that the male who approached Hogan was N.S., and that the two males who were introduced to Hogan were M.M. and T.K.
79Hogan testified that Cabigon recognized another male sitting at the bar as a basketball referee. It is agreed that this male was Wayne Losier. Hogan and Cabigon went over to speak to Losier and they exchanged some laughs. He and Cabigon then discussed where to sit and decided to sit at the bar.
80Hogan testified that N.S. came over and tried to sit with them. At that point, N.S. and Cabigon got into an argument. Hogan referred to the situation as “a drunk argument”. Hogan was concerned about the argument because he was worried that they would get kicked out of his girlfriend’s place of work. N.S. went back to the males he had been sitting with and then came back over to continue the argument. Hogan testified that at some point the two males with N.S. came over as well.
81Hogan testified that eventually they all got kicked out of the bar. They all went to the entrance of Overtime where Hogan kept trying to deescalate the situation. Hogan testified that the argument just kept going in circles. Hogan testified that he thought that at the end N.S. and Cabigon shook hands or almost shook hands. It seemed to him that everything had been put to rest.
82Hogan testified he told Cabigon to go back and sit down, and then he tried to get the others to leave. Hogan testified he was pretty sure he went back down to the entrance again and then the group of males left.
83In cross-examination, it was suggested that Hogan had met N.S. before and that N.S. had Hogan’s phone number. Hogan disagreed. A portion of Hogan’s audio statement to the police was then played in which Hogan referred to N.S. having his number. Hogan testified that he might have given N.S. his number but did not remember that. Hogan testified that it did not make sense to him that he would have given N.S. his number. Hogan agreed that his memory of events was better when he spoke to the police, and he agreed that he did not remember every detail of the night.
84Hogan testified that during the argument N.S. made a comment like “do you know who I am”. At one point, Hogan told N.S. that he needed to shut up or he would smack him in the mouth. At one point, N.S. made a threat to “maybe fight”.
85It was suggested to Hogan in cross-examination that there was mention of a gun, or a gun sign, and that Hogan said, “we have sticks too” and that he said this in order to make the males back off. Hogan testified that he did not hear any threats about weapons or guns, and he did not make one. Hogan agreed that N.S. was the instigator of the argument and that he did not recall M.M. being involved in the argument.
86Hogan testified that after the group left, he and Cabigon went back and sat at the bar. Cabigon was sitting on Hogan’s right side and was talking to Hogan’s girlfriend. Hogan testified that the next thing that happened was there was a big bang and his ear went numb. Hogan described that everything was white for a second and his ears were ringing. Everyone was in a panic. He looked and saw Cabigon dead on the floor. Hogan used his cell phone to call Cabigon’s closest friends to let them know what happened and to contact Cabigon’s parents to get everyone to the hospital as fast as possible.
87In cross-examination Hogan agreed that he had been drinking that day. Hogan testified that the passage of time had impacted his memory of events more than the alcohol. He had not seen the surveillance video from the bar prior to testifying at trial.
88In cross-examination, Hogan was shown portions of the surveillance video taken from inside the bar on the night of the shooting. It was suggested that, at one point, N.S. tried to get Hogan to come out and have a cigarette with him. Hogan did not recall this.
89Hogan was shown another portion of the surveillance video, and it was suggested that N.S. bought him shots. Hogan did not recall this but acknowledged that it appeared in the video that N.S. brought drinks over and that it was likely that N.S. bought him a drink.
90In cross-examination Hogan agreed that when N.S. went over to M.M. and T.K. and was talking to them, they seemed to be plotting or planning something. Hogan agreed that he was “sketched out” by what they were doing. Hogan was shown the video surveillance and agreed that when the man sitting to the left of where he and Cabigon had been sitting stood up, that was when the tension was the highest. This appears on the surveillance video at around 10:05 p.m.
91Overall, I found Hogan to be a credible and reliable witness. Hogan provided his initial evidence before watching the surveillance videos, and much of what he said was supported by the videos and by the evidence of other witnesses. Most of what he said happened is accepted by the defence. Where there were some issues, I find they were attributable to the passage of time and the impact this has had on Hogan’s memory. When Hogan was taken to his police statement, he agreed that his memory was better when he provided his statement to the police.
92I accept that Hogan likely met N.S. before the night in question. Hogan agreed that he had met N.S. once before at Overtime. In the video surveillance, N.S. approaches Hogan and the two shake hands in a manner that suggests prior knowledge of each other. N.S. then appears to introduce T.K. and M.M. to Hogan, and Hogan shakes their hands as well.
93It is unclear to me whether N.S. had Hogan’s phone number prior to this incident. Hogan refers to this in his police statement, which he acknowledged was provided at a time when his memory was better. However, in his testimony Hogan indicated that it didn’t make sense to him that N.S. would have had his phone number, given their limited prior interaction.
94I do have some difficulty accepting that Hogan has little memory of what the argument was about the night of the shooting. I found that both Hogan and M.M. were vague when describing the subject of the argument. Given the tragic consequences that night, I would expect both would remember what the argument was about. Despite this concern, I accept Hogan’s overall evidence about what happened at Overtime on the night of the shooting as being true and accurate.
Jamie-Lyn Duggan
95Jamie-Lynn Duggan testified that she has worked at Overtime as a bartender and server for about three and a half years, off and on. At the time of the incident, she was in a relationship with Storm Hogan. She had known Cabigon for a few months and had met him through Hogan.
96On the date of the incident, Hogan and Cabigon had had dinner at Overtime and then left. They came back later that night and sat at the bar. Duggan was working on the restaurant side of Overtime that night and was running back and forth between the bar and the restaurant. Duggan testified that it was a busy evening and most of the chairs around the bar had been taken up.
97Duggan testified that she recalled a verbal incident happening. There were two or three males involved with Cabigon and Storm. She recognized one of the males as a regular who would come in and sit at the bar. She did not recognize the others. She was behind the bar when it started, and people were talking back and forth. She didn’t think anything of it. At first, it seemed like a normal conversation and then people were raising their voices and starting to yell, so she realized something was going on. Hogan and Cabigon were saying things, and the others were saying things back. Duggan testified that she could not recall the specifics of what was being said.
98Duggan testified that at one point the voices got louder and everyone “kind of stood up”. Her bartender stepped in and told them that it was a family restaurant, and they needed to step out. The group were pushed outside because families were eating. Duggan could hear yelling and went outside to check to see if everything was okay but had to go back inside because the dining room was full of people.
99Duggan testified that when she went outside the argument was still happening and then “it got broken up”. She heard names being called like “pussy’ and “fuck you”. Hogan and Cabigon came back inside. She believed the males paid their bill outside. The males did not go back inside the bar.
100Duggan testified that Hogan and Cabigon kept drinking at the bar. It seemed that everything went back to normal. They were talking and laughing while she was making drinks.
101Duggan testified that about 15-20 minutes later someone came in and stood by Hogan. This person raised a gun and shot Cabigon in the back of the head. She did not hear this person say anything. She could not describe the person, other than seeing “blue and black”. She could not recall his face. She saw his hand go up, and there might have been something covering the gun. She could not recall if the gun was visible. She saw Cabigon fall to the floor. She was in shock and got down close to the floor. She then made her way to the bathroom.
102In cross-examination Duggan agreed that during the earlier argument the regular said to Hogan and Cabigon “do you know who I am”. She agreed that the regular spoke in slang, like a “wannabe gangster”. She recalled that the regular was wearing a medical face mask.
103I found Duggan to be a credible and reliable witness. Her evidence was not challenged by the defence.
Brooke Kennedy
104Brooke Kennedy testified that in April 2023 she worked part-time at Overtime as a bartender. She was working the night of the shooting.
105Kennedy was shown some of the surveillance video from the night of the shooting. She testified that she knew the person wearing the medical face mask as “Pedro”. He had come into the bar a few times before, and he usually wore a surgical mask, his hair in a bun, and a ball cap. He was with two other males that she did not know. The second male was wearing a white sweater, a mask, and had brownish/green eyes. The third male had a darker complexion and was taller than the other two. He wore a navy-blue sweater and a hat.
106It is agreed in this trial that “Pedro” was N.S., the male with the white sweater was “T.K.”, and the male wearing the navy-blue sweater was M.M.
107Kennedy testified that Pedro (N.S.) ordered several rounds of shots. The male in the white sweater (T.K.) ordered a Stella. The male in the navy-blue sweater (M.M.) asked for water. Kennedy described M.M. as being very quiet and that he did not say too much.
108Kennedy recalled that there was a loud argument at the bar involving Hogan, Cabigon, and the three males. The argument appeared to be mostly between Pedro (N.S.), Hogan, and Cabigon. She remembered Hogan and Cabigon appeared angry about something. She recalled Hogan speaking loudly. At one point Hogan told Cabigon to “shut up” or “sit down”. She and other staff intervened and tried to get the group outside to separate them.
109As the group was leaving, Pedro (N.S.) was trying to talk to Hogan and appeared to be apologizing. Staff got Hogan and the others to go outside, and she got Cabigon to go back into the bar and sit down. She stayed inside the bar and asked another staff member to go outside and get payment from Pedro (N.S.) for the bill.
110Kennedy testified that eventually Hogan came back into the bar and sat with Cabigon. She felt the situation had de-escalated. Cabigon had calmed down and was laughing.
111Kennedy testified that later that evening she saw the male with the navy-blue track suit (M.M.) come back into the bar through the front door area. The male walked about 8 feet to where Cabigon and Hogan were sitting. The male put a black bag to the back of Cabigon’s head. There was a flash and a gunshot went off. The male then ran out of the bar, again through the front door. Kennedy testified that she did not see the gun, because there was a bag covering the male’s hand.
112Kennedy testified that another bartender came from the kitchen and pulled her into the kitchen. Hogan also followed her into the kitchen. She went back out and called 911, while another person performed CPR on Cabigon. She recalled that there were other patrons, including families with children, who were hiding under tables.
113I found Kennedy to be a credible and reliable witness. Her evidence was not challenged by the defence.
Constable Vitali and the dog track
114Constable Chris Vitali (“Vitali”) was qualified as an expert canine handler, with expertise in dog tracking evidence and interpreting the behavior of his dog named Royal.
115Vitali testified that he was called out to Overtime on the evening of April 21, 2023 and arrived at approximately 10:50 p.m. He received information that the suspect had last been seen running southbound in the area of a strip mall which was just to south of Overtime. Vitali determined that the best place to start his dog track was in the area of the strip mall because the area outside Overtime had been contaminated by the presence of people including EMS and police.
116Vitali testified that the conditions for the dog track were very good. It was late in the evening, and there were fewer people walking around the business areas. Within a minute of starting the dog track, the dog indicated on an article on the sidewalk in front of the strip mall. This turned out to be a spent shell casing, which was seized as evidence.
117As they continued the track southwest, the dog dove under a work van, indicating on an item at that location. The police located a cell phone under the van which was seized as evidence. The cell phone was approximately 68 meters from where the shell casing was found.
118The dog track continued southwest, through a large gravel parking lot. The dog indicated on an item northbound, up into the gravel. The police located blue sweatpants, which were seized as evidence. The blue pants were located about 68 meters from where the cellphone had been found.
119The dog track continued west into a bush area, that consisted of a green space with mud and rocks. There were no walking trails through this area. The dog indicated on a blue satchel that was in a tall grassy area. Upon closer inspection, the officer noticed that the blue satchel had a hole with fibers splaying out and that there was something that looked like the front of a firearm. The blue Nike satchel bag and contents were seized by the police.
120It is agreed that the blue satchel contained a 9mm Luger caliber Glock, model 26, semi-automatic handgun with a 31-capacity magazine inside of it. The slide was stuck open to the rear, one round was in the barrel of the gun, and there was another jammed round pushing up from the magazine against the first round. Once the magazine was removed, there were 26 rounds still inside. It is agreed that this was a functional firearm. It was seized by the police.
121The dog track continued to an area around Cambrian Heights Drive, and they walked through the complex. No other items were found, and the dog track was ended at that location.
122With respect to the evidence seized during the dog track it is admitted:
a. The spent shell casing was later examined by an expert in the field of examination and comparison of firearms, firearm components, ammunition, and ammunition components, who confirmed that the shell casing had been fired from the Glock Model 26, 9 mm Luger handgun that was found inside the blue satchel;
b. The cellphone was a Samsung SM-A032F. It was examined and the name “Warya” was pulled from the phone data. The phone had connected to “Overtime Bar Guest Wi-Fi” and had a saved Google Map location for 304 Elizabeth Street, Sudbury. It is admitted that this cellphone was in M.M.’s possession when he was at Overtime;
c. The blue jogging pants were later tested and M.M.’s DNA was found in a swab taken from the pants;
d. The blue Nike satchel bag contained the Glock Model 26, 9mm Luger handgun. The handgun was swabbed and there were too many DNA sources in the sample taken. It is admitted that the handgun was the firearm used in the Overtime shooting. It is admitted that the handgun met the definition of a “firearm” and “prohibited firearm” under the Criminal Code and was a functional semi-automatic handgun. The serial numbers located on several different parts of the handgun had been defaced; and
e. The detachable box cartridge magazine was a “prohibited device” as defined by the Criminal Code because it could hold more than 10 cartridges of 9 mm Luger ammunition. The rounds contained in this magazine were compatible with the handgun seized.
123I found Vitali’s evidence to be credible and reliable. His evidence and the results of the search were not challenged by the defence.
Matthew Taylor
124Matthew Taylor was called as a witness by the defence. He testified that he had also been at Overtime on the night of the shooting. Taylor was shown a clip from the video surveillance inside Overtime and identified himself as the person arriving at approximately 9:06 p.m. He sat to the left of Losier, Pothier, and Shallot on the north side of the bar.
125Taylor testified that there was an altercation between two groups of men that night. One group consisted of three males sitting at the end of the bar, and the other group of two males sat across from him.
126Taylor described the male sitting close to him as being “the darkest” of the individuals and he wore a medical mask. He described the other two as appearing to be of “Arab descent”. Taylor identified these males as the same males depicted in a photograph taken outside of Overtime. There is no issue that the three males he was referring to were N.S., T.K. and M.M.
127Taylor described the two males sitting across from him as “Filipino” and “mixed white and black with cornrow hair”. There is no issue that these males were Cabigon and Hogan.
128Taylor testified that he heard shouting from each group and then group 1 (N.S., T.K. and M.M.) approached group 2 (Cabigon and Hogan). The groups began to “get at each other” and fight. One of the males from group 2 (possibly Hogan) appeared to be trying to separate them with his arm. Taylor testified that there was some yelling, but he did not remember “a whole lot of it”. It was mostly derogatory stuff.
129Taylor testified that he could not really hear what was being said. He heard a couple of things said but could not say who said them. He believed that one of the males from group 1 (possibly T.K.) made a gesture like a gun.
130Taylor testified that he left shortly after the group got kicked out. He testified that he saw one male (possibly Cabigon) come back into the bar. He did not see anyone else return to the bar, and he left shortly after this.
131I found Taylor to be a credible witness, trying his best to remember what happened on the night of the shooting. It was very clear to me that Taylor’s memory of who did what had been seriously impacted by the passage of time. His identification of certain individuals doing certain things was contradicted by the video surveillance evidence. For example, he appeared to identify T.K. as the primary aggressor during the argument, when the video surveillance supports a finding that it was N.S. In the end, I find that I cannot rely on his evidence with respect to who did what. However, I do accept Taylor’s evidence that at some point during the argument someone made a gesture of a gun.
M.M.
132At the time of the trial M.M. was 19 years old. I was advised by counsel that M.M. had ADHD and that a fidget spinner would assist with his concentration. M.M. was provided with a fidget spinner to hold and spin while he gave his evidence in order to assist him with concentration. M.M. used the fidget spinner frequently while answering questions, and I am satisfied that it provided him with some assistance while giving evidence.
• M.M.’s background
133M.M. testified that he was born in Somalia and moved to Canada with his family when he was five years old. He grew up in Scarborough with his mother, father and little brother.
134M.M. testified that he grew up in difficult circumstances. The building he lived in was dirty and there were cockroaches and a lot of power outages. He had a loving relationship with his mother and little brother but had a poor relationship with his father. M.M. testified that his father verbally and physically abused his family growing up. M.M. testified that he hated his father.
135M.M. testified that his father was very religious and used religion to control the family. He would make them fast, pray five times a day, read the Quran every day, and go to the mosque. If M.M. didn’t do this, he would “get beat”. M.M. testified that he would “get beat” for speaking English, questioning his father, not understanding his father, or messing around at home with his little brother. If he were to get hurt in the playground and come home, his father would beat him. M.M. testified that his father would use shoes, slippers, chairs, belts, hangers, wooden spoons, or his hands to beat him. M.M. testified that he would be beaten by his father every day.
136M.M. testified that he did not like his high school. He had asked his father to attend another school that had sports, but his father would not allow it. The school M.M. attended did not have sports and was filled with “troubled kids” who did drugs, drank, and committed crimes. M.M. testified that he had no friends and would get picked on because he was “broke” and wore “Walmart clothing” instead of the designer clothes others wore.
137M.M. testified that the police were at his high school often and they often targeted the black kids at the school. Once M.M. was at a Harvey’s restaurant with his friends, someone called the police and complained about the group being inappropriate. While the police were questioning M.M., he pulled out his black cell phone. M.M. testified that he saw the police officer’s eyes widen and he pulled a gun on M.M. This happened sometime in 2022. M.M. testified that this made him realize that racism was real and if he had moved faster that day he would have been shot.
• M.M. becomes involved in drug trafficking
138M.M. testified that he started skipping school in high school and would hang out at the mall with his friends. He was introduced to a guy named “Storm” who also hung out at the mall. M.M. purchased “weed” from Storm. M.M. clarified that this Storm was not Storm Hogan.
139Near the end of 2022, M.M.’s parents found out that he was skipping school when they saw his report card and M.M. was beaten as a result. M.M. decided that he had had enough of his father and wanted to get a job. M.M. testified that he didn’t know how to get a job because his parents were on welfare and didn’t work. M.M. thought maybe he could sell drugs with Storm.
140M.M. testified that Storm told him he would help him with selling drugs. Storm gave him drugs to sell, but M.M. would not get any money because he was just learning how to sell weed. M.M. left home and slept on stairwells. This went on for about two to four days until M.M.’s mother found him and brought him back home. M.M. was beaten by his father again.
• M.M. moves to Thunder Bay
141M.M. testified that he ran away from home again. This time Storm suggested that he go to Thunder Bay because the prices for drugs were better in Thunder Bay. There were a lot of people selling drugs in Toronto and there were a lot of police. If he wanted to make money, M.M. would have to go to Thunder Bay.
142At the end of January 2023, Storm bought M.M. a bus ticket to Thunder Bay and M.M. travelled there with another person named “Skrilla”. When the two arrived in Thunder Bay they were picked up and brought to a house where they waited until Storm’s friend told them to go to a “trap house”. M.M. described a “trap house” as a “good place where you sell drugs”.
143M.M. testified that the arrangement was that he would be given drugs, specifically crack cocaine, to sell and then he would pay the supplier back after he sold the drugs, keeping some money for himself. The first time they were given drugs they messed up and shorted the supplier $750. In the end, there were no consequences from this mistake and M.M. and Skrilla continued to sell crack cocaine.
• M.M. moves to Sudbury
144M.M. testified that he was in Thunder Bay for about a month. Eventually the prices were getting bad, so Storm suggested that they go to Sudbury where they could make more money. Sometime in March 2023, M.M. and Skrilla took the bus to Sudbury and Storm connected them to a person named “Pedro” who was going to supply them with the drugs to sell. When they arrived in Sudbury, they went to the Balmoral apartments and stayed at a “users” apartment. A “user” was someone who used drugs. They waited about a day before meeting Pedro.
145M.M. and Skrilla continued to sell crack cocaine in Sudbury. The arrangement in Sudbury was that Pedro would front M.M. and Skrilla the drugs and they would pay Pedro back. The two put the money they made into Skrilla’s bank account. Pedro provided M.M. with a cell phone to use for this endeavor.
146It is agreed at this trial that “Pedro” is N.S. From this point on in M.M.’s evidence he refers to Pedro as N.S.
147After about a month, Skrilla decided that he was satisfied and wanted to go home. Skrilla took the money from the bank account and went back to Toronto. M.M. testified that he agreed that Skrilla could take the money. M.M. was being nice and thought he could make more money selling drugs.
148M.M. testified that he did not return to Toronto with Skrilla because at this point, he was with N.S. N.S. was being nice to him, buying him clothes and taking him out to bars and to B&B’s. M.M. thought he could make more money selling drugs and could support himself with N.S.’s help, so he decided to stay. He didn’t want to return home.
149Shortly after Skrilla left, M.M. went to another trap house. When M.M. got there, he was tackled from behind by a group who stabbed him, beat him with metal bats, and robbed him of his drugs. M.M. managed to get away and called N.S. for help. N.S. told him to go to 905 Cambrian Heights. This was another user’s residence. When M.M. got to the residence he went downstairs and went to sleep. The user gave him gauze and M.M. patched his wounds and applied antibiotic cream. M.M. waited for about a day and N.S. came and told him that he “took it like a champ” and that N.S. had his back and would help him. N.S. told him not to worry about paying him. N.S. gave him some Percocet’s and a couple of hundred dollars for food. M.M. testified that he did not have any concerns about being robbed of the drugs.
150M.M. testified that he did not go to the hospital because he didn’t want to be asked about what happened and he would probably be taken back home. He wanted to stay in Sudbury with N.S and thought he could support himself with N.S.’s help.
151M.M. testified that he stayed at Cambrian Heights for about a week. N.S. arranged for a cab and M.M. went to another trap house. When he got there, he hung out for a bit until a guy sucker punched him from behind. He was tackled and the group, including N.S., started stomping on him and jumping on him. N.S. told M.M. that he had to sell drugs or he would get “mashed up” which meant beaten brutally. As a result of this attack, M.M. suffered a black eye and his wound re-opened.
152M.M. testified that before this beating, he had not believed that N.S. would be violent towards him or force him to sell drugs. He thought N.S. was his friend. M.M. testified that he thought N.S. was “beating him for his own good” and teaching him and showing him the ropes. M.M. testified that he was sad but still had love for N.S. and felt he was family.
153After this assault, N.S. told M.M. to go to another trap house located at 304 Elizabeth Street. M.M. testified that he didn’t really stay there. During the days he would be out selling drugs or going to different trap houses. When he had a chance, he’d go back to Elizabeth Street and try to sleep.
154M.M. testified that by this time he was focused on selling drugs. All of the money he made would go to N.S. M.M. testified that he would take some money to buy snacks, cookies and stuff to eat. He barely slept and would eat once a day. N.S. would come to Elizabeth Street every other day and would collect the money M.M. owed him.
155M.M. testified that after N.S. assaulted him, N.S. showed him a video where N.S. was torturing a guy. N.S. told him that he “had a case for murder and attempted murder” and he got away with it. N.S. told him about the murders.
156M.M. testified that N.S. beat him up multiple other times. Once he beat M.M. up because his trap phone wouldn’t work. Another time N.S. beat him up because he thought M.M. was stealing from him. Another time N.S. beat him up when M.M. miscounted money and N.S. held a gun to his head because he thought M.M. was fighting back. M.M. suffered black eyes and bruises from these beatings.
157M.M. testified that despite these beatings, he still thought N.S. was showing him love and teaching him. M.M. testified that it was like what his father had done to him, beating him for his own good.
158M.M. testified that he didn’t leave because he thought N.S. was showing love, and he didn’t have the means to leave. He didn’t have anyone’s phone number and had no money to buy a ticket out of Sudbury. M.M. testified that he wasn’t even thinking about leaving because he was focused on getting through the day, trying to find a place to sleep, and finding food to eat. He also thought N.S. might hurt him if he left.
159When asked why he didn’t call the police, M.M. testified that his father taught him to never tell anyone or call for help, especially the police. M.M. did not think that the police were there for him, and felt the police were his enemy because of his skin colour. M.M. testified that he was also afraid of what N.S. would do if he found out.
160M.M. was shown video surveillance footage from the Elizabeth Street residence on April 10, 2023. M.M. agreed that the video surveillance showed him wearing the same blue satchel that contained the gun used to shoot and kill Cabigon. M.M. testified that the blue satchel had a gun inside of it that day and that N.S. had told him to hold his gun. M.M. testified that this was the first time he had possessed the gun. The next time he possessed the gun was on the day of the shooting.
• April 21, 2023 the day of the shooting
o Going to the bar
161M.M. testified that on April 21, 2023, he was at the Elizabeth Street address. He had finished selling drugs and texted N.S. to let him know. At around 7 p.m., N.S. arrived with T.K. carrying a bag. The bag contained drugs for M.M. to sell as well as some Hennessy, Adderall and Percocets. The group hung out for a bit and M.M. took two Adderall, two Percocets, and two sips of the alcohol. M.M. testified that he did not have much to eat that day and when they left Elizabeth Street he felt like he was high, foggy and lightheaded.
162M.M. testified that while they were at Elizabeth Street, N.S. and T.K. had three guns. N.S. was carrying two guns. N.S. loaded one and put one on the table and .T.K was playing around with his gun. M.M.’s evidence is unclear on this point, but when they left Elizabeth Street one gun was in the satchel and one was on the table. M.M. then referred to someone having a gun in their waistband and on their hip but was very vague on this point.
163M.M. testified that N.S. called a user who drove them to the bar. The surveillance video from inside the bar was shown to M.M. who confirmed that he, N.S. and T.K. arrived at around 8:50 p.m. M.M. testified that he and N.S. spoke to the man at the bar about basketball. At other times M.M. scrolled through the internet on the cell phone he had with him.
164M.M. testified that at one point he went outside to sell drugs to the user who had driven them to Overtime. M.M. sold the user crack and received $70. N.S. told him to hold on to all the money he earned that night and give it to him at the end of the night. M.M. identified this on the surveillance video as occurring at 8:58 p.m.
165M.M. was asked about the various times in the surveillance video where he can be seen leaving the bar. M.M. testified that at times he thinks he went to the bathroom. Another time he saw N.S. go to the bathroom and thought N.S. needed him so grabbed the bag of drugs and followed him. N.S. told him to go back to the bar.
o Arrival of Cabigon and Hogan
166M.M. was shown the surveillance video which depicts Cabigon and Hogan arriving at the bar. M.M. testified that he had met Hogan before at Overtime with N.S. He remembered that Hogan said he was a rapper.
167M.M. testified that they greeted Hogan and Cabigon. After that, M.M. did not pay attention to what was going on. He continued to sit at the bar with N.S. and T.K.
168M.M. was shown the surveillance video from 8:42 p.m. where N.S. came over, patted M.M. on the shoulder and the three left the bar. M.M. testified that at that point they went outside, but he wasn’t sure if it was to have a cigarette or to make some phone calls.
o The argument with Cabigon and Hogan
169M.M. was shown the surveillance video from 9:58 p.m. where he walked over to where Hogan and Cabigon were sitting. M.M. testified that N.S. asked him to come talk to Hogan with him. He went over and they were all talking. M.M. testified he wasn’t really involved in the conversation, so he just went back to where he had been sitting at the bar. M.M. testified that he did not remember hearing what was being said. He testified that there was no argument at this point.
170M.M. was shown the surveillance video from around 9:59 p.m. to 10:03 p.m. where N.S. comes over, gives M.M. the blue satchel, shakes his hand, and taps him on the shoulder. M.M. testified that N.S. was complimenting him and saying nice stuff. N.S. told M.M. that he “manned” him which meant being like a friend. N.S. handed him the satchel. M.M. testified that he knew that there was a gun in the bag. When asked why he was smiling during this interaction, M.M. testified it was because N.S. was being nice to him.
171When asked about why he thought N.S. was giving him the satchel with the gun, M.M.’s testimony was vague. He testified he thought N.S. wanted him to hold it, “before…” and then his evidence trailed off. M.M. testified that he was not aware of an argument at this point in time.
172M.M. was shown the surveillance video from around 10:03:54 p.m. which shows M.M. grabbing the blue satchel while he sat at the bar. M.M. testified that he had seen Hogan and N.S. and it looked from their body language that they were arguing. M.M. testified that he could not hear what they were saying because it was loud inside the bar. M.M. testified that he was grabbing the satchel and the zipper on the satchel.
173M.M. was shown the surveillance video from around 10:04:13 which shows N.S. coming back and speaking with M.M. M.M. testified that N.S. said he knew M.M. had his back and that N.S. had M.M.’s back. M.M. testified that N.S. told him that “if anything happens, be ready to shoot”.
174When asked why he thought N.S. was saying this, M.M.’s evidence became evasive. He testified he thought N.S. needed protection, or something, and wanted him to shoot. He testified he didn’t know why N.S. said this. It could have been because of the argument. M.M. testified he didn’t want to shoot anyone, then his voice trailed off as he testified on this point.
175M.M. was shown the surveillance video from 10:05 p.m. where he appears to be reaching inside the satchel. M.M. testified that he was grabbing the gun inside the satchel and was watching and waiting to see if Hogan had a gun. M.M. testified that he thought Hogan had a gun because he was black, used Toronto slang, wore clothes like them, and knew N.S.
176M.M. was shown the surveillance video from around 10:05:29 p.m. where he can be observed walking over to where N.S., Hogan, and Cabigon were located. M.M. testified that he went over there because he thought there was going to be a fist fight or something and he went to help N.S. M.M. testified that he then went back to his chair because he did not want to be involved in what was going on. He felt it had nothing to do with him. M.M. testified that he didn’t want anyone to shoot him, so he went back.
177M.M. was asked if he remembered what was being said at that point. M.M. testified he couldn’t remember everything but, at some point, Hogan said, “we have sticks too”. M.M. could not say within what context this was said.
178M.M. was shown the surveillance video from around 10:05:59 p.m., where he appears to have his hand back inside the satchel. M.M. testified he thought Hogan had a gun, so he was waiting to see if Hogan had a gun.
179M.M. was shown the surveillance video from around 10:06:17 p.m. where he went back over to where N.S., Cabigon and Hogan were located. M.M. testified that he went over to the argument because it had escalated and he thought they were about to start fighting. M.M. testified that he planned to fight “with his hands” and was not thinking about using the gun.
180M.M. was shown the surveillance video from around 10:06:48 p.m. when the group was kicked out of the bar. M.M. testified that he went back into the bar, grabbed the bag with the drugs, and went back outside. He did this because the drugs were his responsibility. When he got outside, at some point N.S. took the bag of drugs.
o After the group is kicked out of Overtime
181M.M. was shown the surveillance videos from outside of the bar and leading down Notre Dame Avenue.
182M.M. testified that after they left the bar, he was concerned about the bag and was worried about how angry N.S. was. M.M. testified that when N.S. got angry, he would become violent and beat him. M.M. testified that he didn’t know what N.S. was angry about but thought it was probably about the argument or “something like that”.
183M.M. testified that T.K. took the bag of drugs from him and they continued to walk southbound along Notre Dame. N.S. was telling M.M. that it was “over”, he was “done” and that M.M. made him look bad.
184M.M. was shown the surveillance video from around 10:16 p.m. where the group appears to pause and stand in a parking lot. M.M. testified that N.S. was yelling at him, asking why he didn’t shoot. N.S. told M.M. that he “didn’t listen” and he had embarrassed him. N.S. called him names such as “Wastu” which meant loser. M.M. did not respond because he was scared to talk back to N.S. As they continued to walk southbound, N.S. was talking to T.K.
185M.M. testified that when they got to the Tim Horton’s, N.S. told him to go back to the bar and “to kill the guy that was talking sick to him”. N.S. told M.M. to “notch him, wig him, pepper him, no leg shots, and he has to die”. N.S. told him not to try to fool him because he had M.M.’s address and he would get him and his family killed. M.M. testified that “notch” means kill, “wig” means a head shot, and “pepper” means to shoot a bunch of times. N.S. then gave M.M. the blue satchel containing the gun.
186When shown the surveillance video in which M.M. appears to move back and forth towards N.S., M.M. testified that N.S. kept calling him back and telling him about his family and his address, and not to play because he’d get him killed. M.M. testified that he believed these threats because N.S. had told him he was a killer and had showed him videos of N.S. torturing people. M.M. testified that he believed that N.S. could get him anytime.
187M.M. was asked why he didn’t try to do anything, such as shoot N.S. and T.K. once he had the gun. M.M. testified that he believed if he tried to do anything they would shoot him and kill him first.
188M.M. was asked why he didn’t go into the nearby Tim Horton’s and ask for help. M.M. testified that he was afraid N.S. and T.K. would shoot him and he didn’t think anyone could help him.
189M.M. was asked why he didn’t call the police. M.M. testified that he didn’t know how the police could help him.
190M.M. was then asked, “In your mind, prior to this threat at Tim Horton’s did you consider that N.S. would have threatened you to commit any criminal offence as a result of being involved in drug dealing with him?”. M.M. responded “No”. M.M. testified that N.S.’s prior abuse was because N.S. wanted to control him and it was not related to selling drugs.
191M.M. testified that as he walked back to Overtime, he was thinking about N.S. killing him, his brother and his mother. M.M. testified that he did not turn back to see where N.S. or T.K. were.
192M.M. was asked why he didn’t run away. M.M. testified that everything was happening fast and he thought N.S. would kill him and his family.
193M.M. was asked why he didn’t call the police while he was walking back to the bar. M.M. testified that he didn’t know how they could help him and all he was thinking about was his brother.
194M.M. was asked why he didn’t ask for help when he got inside the bar. M.M. testified that he didn’t think a “civilian” could help him. He felt he couldn’t do anything to save himself or his family. M.M. testified that if he ran, made a call, or asked for help, he and his family would be dead.
o Arrival at the bar
195M.M. testified that he walked into the bar, walked behind Cabigon and shot him. He had never shot a gun before. He just pulled the trigger. M.M. testified that the gun got stuck in the bag when he tried to pull it out so he raised the bag and shot through it. He pulled the trigger twice. The first time it shot. The second time it didn’t. He then ran away.
196M.M. was shown the surveillance video which depicts M.M., after the shooting, turning around as he was leaving and raising the gun. M.M. testified that he did not remember doing that.
o After the shooting
197M.M. testified that after he shot Cabigon, he ran southbound through parking lots and eventually into a wooded area. Along the way he discarded the cell phone, the satchel containing the gun, and his pants. He discarded these items so that he would not get caught. M.M. testified that he didn’t remember what was going through his mind at this point, his mind was blank. M.M. testified that he had no particular route or destination in mind as he ran. He recognized 905 Cambrian as a user’s house that he had stayed at before, so he went inside, went downstairs, and went to sleep.
o The day after the shooting
198M.M. testified that the next day he texted N.S. N.S. told him that he would get him dropped off at home. M.M. waited and eventually two guys came with a car. N.S. was on the phone with them and they drove him back to Toronto. M.M. testified that the two guys already had his address and they drove him directly home. They arrived in Toronto in the morning.
199M.M. testified that when he arrived home, he was anxious and scared because he had been away for a long time and he was scared that his father would beat him. Eventually his mother let him into the apartment and he went to sleep in his bed. The next day his father beat him.
200M.M. testified that he spoke to his cousin about the shooting and his cousin told him to go to the Mosque and repent. M.M. testified that he was considering turning himself in, but his father saw him on the news and called the police.
o Assessment of his evidence
201There were portions of M.M.’s evidence that I found to be both credible and reliable. However, there were other portions of his evidence that I did not find credible. Having considered M.M.’s evidence, along with the totality of the evidence, there are portions of his evidence that I reject.
202It was clear to me that M.M. was nervous and I have taken that into consideration while assessing his evidence. I am also mindful that M.M. was testifying about events that occurred when he was 16 years old. Generally, where an adult testifies about events that occurred when they were a child, their credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of their age at the time the events about which they are testifying occurred: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at para. 27.
203Aspects of M.M.’s evidence were provided freely and without difficulty. M.M.’s description of his home life and struggles at school were consistent and provided in a straightforward manner. His description about how he began trafficking in drugs and how he arrived in Sudbury was detailed and consistent.
204M.M.’s evidence became vague and stilted when describing the events immediately leading up to and surrounding the actual shooting. At times, I found M.M. to be evasive in his responses. At other times, I found he added details that were not credible when assessed against the totality of the evidence.
205It was often difficult to hear M.M. and he had to repeat his evidence on key points. When M.M. was asked difficult questions, his answers often dropped off mid-answer, and/or his voice became very difficult to hear. When asked some difficult questions, there were long pauses before M.M. would provide an answer. I accept that some of this may be attributed to M.M.’s nervousness while testifying. There were other times where M.M. seemed to be searching for what he felt were the right words, or that he was struggling to find an answer that was consistent with his overall narrative.
206In the end, I accept some of M.M.’s testimony, I reject other aspects of his testimony, and I am left in a reasonable doubt with respect to other aspects of his testimony. I will explain my findings about M.M.’s evidence further and make additional findings of fact.
o The events leading up to April 21, 2023
207I accept M.M.’s evidence about how he came to Canada, his upbringing, the dynamics within his family, and the struggles he faced while in high school. I accept and find as a fact that M.M. had a good relationship with his mother and his brother, but he had a poor relationship with his father. I accept his evidence that his father was very strict, and at times physically abusive.
208I accept M.M.’s evidence about how he became involved in the drug trade and how he made his way to Thunder Bay and Sudbury. I accept and find as a fact that he approached an individual in Toronto who assisted him with getting into the drug trafficking business and introduced him to drug suppliers with whom M.M. could work with to sell drugs and make money. M.M. provided this evidence without difficulty and was not challenged in cross-examination on this aspect of his evidence. M.M. was able to clearly explain how the drug trade worked, with his receiving the drugs in advance, selling them, and then keeping part of the profit from the sale for himself. I accept and find as a fact that during the month he was in Thunder Bay, he and his friend earned and saved some money. I accept M.M.’s evidence that he did not experience violence within the drug trade while in Thunder Bay.
209I accept M.M.’s evidence that he came to Sudbury in order to make more money selling drugs. I also accept his evidence and find as a fact that he was introduced to N.S., who supplied him with drugs to sell (specifically crack cocaine) and a cell phone to be used as part of drug trafficking. M.M. was able to describe his work as a drug trafficker in Sudbury in detail. He received drugs from N.S., he sold them to users, and he would keep some of the profits. On all of the evidence, I find as a fact that M.M.’s relationship with N.S. was solely tied to the drug trade. Their relationship was one of drug supplier and drug seller.
210I accept M.M.’s evidence that during his time in Sudbury, his source of income came from selling crack cocaine. At times he stayed at trap houses and sold drugs from there. I accept that M.M. would sometimes go out to meet users to sell drugs, or they would come and meet him. M.M. testified that he would either walk or use cabs to get to users. This is supported by the video surveillance from 304 Elizabeth, which shows M.M. repeatedly leaving the residence alone.
211I accept M.M.’s evidence that when he was staying at the Elizaeth Street address he would see N.S. about every other day and he would pay N.S. for the drugs that had been fronted to him.
212I find as a fact that M.M. was free to use the cellphone provided to him to contact others. There was no evidence that the cell phone had any user limitations. I find, as a fact, that the cell phone was capable of making phone calls and receiving messages. I find that M.M. used the cell phone to communicate with others about the purchase of drugs. If M.M. wanted to connect his cell phone to the internet, he required an internet connection, such as an available Wi-Fi network.
213M.M. testified that he was in Sudbury for no more than 9 weeks prior to the shooting. I found his evidence on this point to be vague, but in the overall circumstances I am prepared to accept this time frame. I accept M.M.’s evidence about the chronology of locations that he stayed at during March and April. Based on the video surveillance, I find as a fact that M.M. was staying at the Elizabeth Street house at least by April 10, 2023.
214I accept M.M.’s evidence that he was robbed at a trap house. I found M.M.’s evidence about this incident to be credible, detailed, and consistent. It makes sense that drug users might try to rob a drug dealer.
215I accept M.M.’s evidence that N.S. helped him after the robbery. M.M. testified that N.S. told him he “took it like a champ”, that he would help him and that he had his back. I accept that N.S. provided a place for M.M. to stay, briefly, while he recovered from his injuries.
216I reject M.M.’s evidence that N.S. told him that he didn’t have to worry about paying him for the lost drugs. I also reject M.M.’s evidence that he did not have any concerns after being robbed of the drugs. This is not credible in light of the totality of the evidence. M.M. testified that shortly after the robbery, after he had recovered somewhat from his injuries, N.S. was angry with him and assaulted him. The assault caused some of M.M.’s partially healed injuries to reopen. M.M. testified that N.S. told him that he had to sell drugs or else he would get beaten. M.M. also testified that after being assaulted by N.S., all of the money he made went to N.S. It makes sense, and I find as a fact, that after losing the drugs in a robbery, M.M. had to pay N.S. back for those drugs and that N.S. enforced this with violence.
217M.M. testified that after the first beating, N.S. would assault him multiple times. On one occasion N.S. beat him because he thought M.M. had broken the cell phone. On another occasion, N.S. beat him because he thought he stole $5 from him. On another occasion N.S. beat him and put a gun to his head when he miscounted money. It is clear, and I find as a fact, that N.S. would be violent towards M.M. and that this violence was within the context of their drug trafficking relationship.
218The video surveillance from Elizabeth Street on April 10, 2026 shows M.M. and N.S. walking outside the residence and M.M. is wearing the blue satchel across his body. M.M. testified that on that day he knew the blue satchel contained a gun. He knew this because N.S. told him to hold his gun. M.M.’s evidence about how long he had the gun in his possession that day was vague. He initially testified he didn’t think it was long but didn’t remember. He then said it was for a short period of time. When asked what he meant by a short period of time, he then said it was “like hours”. He testified that he did not touch or manipulate the gun in any way on this occasion. I found M.M.’s evidence on this point to be an attempt to minimize or distance himself from the firearm prior to the night of the shooting. I do not accept his evidence that he did not touch the gun in any way on this occasion. M.M. can be seen wearing the blue satchel with it resting on his right side. Pictures of the satchel and the gun seized following the shooting show that the gun took up almost the entire satchel. If M.M. was wearing the satchel for hours, it does not make sense that he never touched the gun and I reject his evidence on this point.
219In his examination in chief, a question was put to M.M. about whether he had considered that N.S. would have threatened him to commit a criminal offence as a result of being involved in the drug trade with him. This was a very pointed question, directed at a very specific issue. M.M.’s response was “no” with no further elaboration. I reject M.M.’s evidence on this point. The relationship between N.S. and M.M. was one of drug supplier and drug seller. When M.M. was robbed of the drugs he had been fronted, N.S. beat him up and then expected M.M. give him all of the money he earned. M.M. testified that N.S. told him that he had to sell drugs or he would get “mashed up” which meant beaten brutally. When M.M. counted the money wrong, N.S. assaulted him and put a gun to his head. By April 10th, N.S. had asked M.M. to carry an illegal firearm. M.M. testified that N.S. showed him videos depicting N.S. torturing others and N.S. told him he had killed someone.
220I find as a fact that M.M. knew that N.S. was violent and experienced violence at the hands of N.S. I also find as a fact that M.M. knew that if he did not do what N.S. wanted him to do, such as sell drugs, that he would be subjected to coercion and violence. Despite this, M.M. chose to stay in Sudbury and to continue to sell drugs supplied by N.S. I appreciate that this was a complicated choice. M.M. did not want to go home where his father would beat him and he would live in poverty. He wanted to stay in Sudbury and make money selling drugs. I find as a fact that this was a choice M.M. made, albeit a complicated one. M.M. testified that he did not leave Sudbury after N.S. became violent because he still had love for N.S. and thought N.S. was going to show him how to be successful in the drug trade.
o The events of April 21, 2023
221I accept M.M.’s evidence that N.S. and T.K. attended the Elizabeth Street address on April 21, 2023 and that they brought a bag of drugs, including crack, that they wanted M.M. to sell. I also accept that N.S. brought the blue satchel with him, containing the handgun. M.M. can be observed on the video surveillance carrying the plastic bag containing the drugs into Overtime. N.S. can be observed wearing the blue satchel when the group first arrive at Overtime.
222The surveillance video depicts a fairly calm scene when N.S., T.K., and M.M. arrive at Overtime. The group appears relaxed. They converse with others and spend time on their phones. They come and go at various times. When Hogan and Cabigon first arrive, N.S. approaches and greets Hogan in a friendly way. Hogan greets T.K. and M.M. in a friendly way. There is nothing to suggest any tension or hostility at this point. There is no evidence that anyone was anticipating trouble at Overtime that evening.
223I do not accept M.M.’s evidence that N.S. and T.K. had three guns that night. His evidence on this point was very vague and evasive. His voice would drop off, or his answer would trail off before he would finish his sentence. M.M. provided no detail about the guns, other than a vague reference to one being on a table when they left, and a vague mention of a waistband and a hip. M.M.’s evidence on this point does not make sense when assessed against the other evidence. On April 10th, N.S. asked M.M. to hold his gun, which was the gun in the blue satchel. On April 21st, nothing was going on or expected to go on that would require the group to have three guns. In the surveillance video from Overtime, N.S. is wearing the blue satchel with the one gun. While I appreciate that a gun can be concealed, there is nothing in the surveillance video that suggests N.S. and/or T.K. have a gun in their waistband or on their hip. It makes no sense that N.S. would hand M.M. the blue satchel containing the handgun and tell him to shoot if N.S. and/or T.K. had other guns on their person that they could access if things became physical. There is no evidence after the group left Overtime that there was more than one gun. N.S. took the blue satchel containing the gun back from M.M. and wore it as the group walked to Tim Horton’s. He would have no need to do this if he was already carrying another gun. Having considered the evidence in its totality, I find as a fact that the only gun brought to Overtime that evening was the one inside the blue satchel, carried by N.S.
224I found M.M.’s evidence about the argument at the bar to be evasive and internally inconsistent. As I stated earlier, I find it difficult to accept that M.M. did not know what the argument was about. I do not accept M.M.’s evidence that he wasn’t really involved in the argument. The surveillance shows M.M. watching N.S., Cabigon, and Hogan, and shows M.M. repeatedly going over to the area where they were sitting/standing. At one point, M.M. can be observed intently watching the area where the argument is occurring while putting his hand on the gun inside the blue satchel. I find as a fact that M.M. was aware that there was an argument going on and was prepared to back up N.S. if anything happened.
225I found M.M.’s evidence about the circumstances under which N.S. gave him the blue satchel containing the gun to be evasive. During his evidence on this point, M.M. continued to drop off in his evidence before ending his sentences. In his evidence in chief, M.M. was shown the video where N.S. can be seen giving M.M. the blue satchel, shaking his hand, and tapping him on the shoulder. M.M. can be seen smiling during this interaction. M.M. testified that N.S. came over and was complimenting him and calling him a friend. According to M.M., he was not aware of an argument going on at this point. M.M. testified that he did not understand why N.S. was giving him the blue satchel, and that he thought “he wanted him to hold it before…” and then his answer trailed off. When asked why M.M. could be seen smiling at this point, M.M. testified that it was because N.S. was being nice. M.M. testified he was just holding the gun and wasn’t thinking about it.
226M.M.’s evidence on this point makes no sense in the overall context of what was going on. The video surveillance shows repeated movement back and forth from the area where N.S., M.M. and T.K. were sitting, and the area where Cabigon and Hogan were sitting between 9:50 and 10:06 p.m. This is a span of only seven minutes.
227It makes no sense that N.S. would give M.M. the blue satchel containing a gun, just to be nice to him. The video surveillance shows M.M. going over the area where N.S., Cabigon, and Hogan are located. M.M. then returns back to his original position at the bar. About three minutes later, N.S. walks over to M.M., hands him the blue satchel containing the gun, pats him, says something in his ear, then pats him again. This is where M.M. says that for no apparent reason N.S. gave him the gun and said nice things to him. In the surveillance video, when N.S. leaves, M.M. smiles and then looks at his phone. Within a few seconds, M.M. can be observed putting his phone away and looking over in the direction of the argument. A few seconds later, M.M. puts his hand near the zipper of the blue satchel. I find the only reasonable inference to be drawn from this evidence is that N.S. told M.M. to hold the gun in case something happened. M.M. understood this, and when he saw things were getting heated, he placed his hand on the blue satchel, near the zipper, for ready access. I find there is no other reasonable reason why N.S. would give M.M. his gun.
228At around 10:04 p.m., N.S. comes back and speaks into M.M.’s ear, taps him on the chest, grabs his shoulder, and then gives him a half hug. This is only a minute after N.S. gave M.M. the blue satchel. N.S. then walks back over to the area where Cabigon and Hogan are sitting and T.K. follows him. The video surveillance shows M.M. watching the area where the argument was occurring, while putting his hand into the blue satchel and then moving it over to his lap. M.M. then takes his hand out and walks back over to the area of the argument. M.M. testified that he was waiting to see if Hogan had a gun.
229I find that the only reasonable inference on the whole of the evidence is that when N.S. gave M.M. the blue satchel containing the firearm N.S. told M.M. to back him up if a fight broke out. I find as a fact that M.M. took possession of the gun with the intent to use it, if needed.
230I found that in his evidence M.M. attempted to distance himself from the argument and minimize his involvement. M.M. testified he didn’t want to be involved in what was going on and didn’t want to fight. Yet the surveillance video shows him going over to the area of the argument three times between 9:59 p.m. and 10:06 p.m., which is a span of about seven minutes and intently watching the area where the argument was taking place while handling the blue satchel containing the firearm. M.M. agreed that at one point he went over to “help Noah, in a fist fight if there was a fist fight”.
231M.M. testified that he was not thinking about using the gun during the argument and didn’t want to shoot anyone. I do not accept M.M.’s evidence that he was not thinking about using the gun during the argument. The surveillance video shows M.M. leaning forward, watching the argument, and putting his hand on or into the blue satchel more than once. I find as a fact that M.M. was thinking about having to use the gun. M.M. testified that N.S. told him if anything happened, he had to be ready to shoot. I find the only reasonable inference to be drawn from the surveillance video is that M.M. was contemplating using the gun at different points in time during the argument and was moving his hand close to the gun in order to access it if needed. M.M. agreed in cross-examination that at one point he had his hand wrapped around the grip of the gun. In the end, M.M. did not have to use the gun, because the argument did not turn physical and the group was kicked out of the bar.
232I accept M.M.’s evidence that he didn’t want to shoot anyone. However, there is a difference between not wanting to shoot anyone and being prepared to use a gun if certain circumstances arise. M.M. testified that he thought Hogan had a gun. I find as a fact that M.M. was prepared to use the gun to protect N.S. if anything happened during the argument. This included an intent to shoot the gun, if M.M. felt it was necessary.
233On all of the evidence, I am satisfied and find as a fact that the argument was mainly between N.S. and Cabigon, with Hogan joining in at times. I find as a fact that M.M. and T.K. were prepared to assist N.S. and they frequently went over and stood beside N.S. during the argument. In addition, I find that M.M. was prepared to use the gun to back N.S. up, if needed.
234I find as a fact that the argument was broken up by bar staff before it became physical. There is no evidence that anyone assaulted anyone prior to the group being kicked out of the bar. At most, the argument became verbally heated and loud. I find that, in the end, there was no need for M.M. to pull out the gun in his possession and use it.
o After they leave the bar
235I accept M.M.’s evidence that N.S. was angry when they left the bar. In the surveillance videos from outside the bar and heading southbound, N.S. is physically animated, waving his arms while speaking with M.M. and T.K.
236M.M. testified that as they walked away from the bar, N.S. was angry with him because he made N.S. look bad and embarrassed him. M.M. testified that N.S. was upset with him because he didn’t shoot the gun. I do not find this evidence to be credible. The surveillance video shows that M.M. did everything that N.S. asked him to do while inside the bar. The verbal argument was fairly short and never became physical. At times M.M. and T.K. went over to the area of the argument to stand with N.S. At other times, M.M. held on to the gun and watched the argument, as he had been instructed to do. In the end, after a short verbal argument, there was never any need to shoot anyone. On all of the evidence, there was no reason for N.S. to be upset with M.M.
237I am satisfied, and find as a fact, that N.S. was upset about what happened inside the bar, and he felt disrespected by Cabigon and Hogan. I am satisfied, on the whole of the evidence, that it was N.S. who possessed a motive to go back and harm Cabigon.
o The threat
238M.M. testified that N.S. told him to go back to the bar and kill the guy who was talking sick to him. M.M. testified that he was told to “notch him”, “whig him”, and “pepper him”, with no leg shots. I am satisfied that N.S. told M.M. to go back to the bar and kill Cabigon. M.M. was the person N.S. chose and trusted to hold on to his gun during the argument at the bar. M.M. was the person N.S. chose and trusted to shoot the gun, if needed.
239I found M.M.’s evidence with respect to the threat to be problematic. M.M. agreed that he did not remember the exact words used when he was threatened. His evidence about the words N.S. used changed during his testimony. The essence of his evidence was that N.S. knew where his family lived, that he would kill M.M. and would kill his family. At times, M.M. seemed to add additional details to the threat, depending on the form of questioning. Given the issues with his credibility, I do not accept his evidence.
240However, while I do not accept M.M.’s evidence on this point, his evidence does leave me with a reasonable doubt on this issue. The only witness at this trial who can provide an account of what was said is M.M. I have found aspects of M.M.’s evidence to lack credibility. However, when I look at the totality of the evidence, including my acceptance that N.S. was angry about what had happened inside the bar, that N.S. had a motive to want to harm Cabigon, that N.S. asked M.M. to use the gun if needed while inside the bar, I find that M.M. could have been threatened by N.S. to kill Cabigon. Alternatively, M.M. could have been prepared to do what N.S. wanted him to do. There is some evidence to support this as well. In the end, the law requires me to resolve any doubt about what happened at this point in time in favour of the accused.
241I would note that at trial, the Crown did not challenge M.M.’s evidence that he was threatened and proceeded on the basis that despite the threat, other essential elements of duress were not present in this case.
o Walking back to the bar
242M.M. was questioned about the circumstances surrounding his walk back to the bar. He testified that he thought only of the threat to himself and his family. Based on the surveillance videos, I find as a fact that the walk took about five minutes. I find as a fact, and it is agreed, that M.M. was carrying a cell phone, which could be used to make phone calls, including a 911 call. On all of the evidence, I find as a fact that there were at least two businesses that were still open, such as Tim Hortons and MacDonalds, along Notre Dame Avenue. I find as a fact that Notre Dame was busy at this time of night, with many cars driving up and down the street.
243Based on the surveillance video, I find as a fact that N.S. and T.K. did not follow M.M. as he walked back to the bar, either on foot or in a vehicle. They were driven away from the Tim Hortons parking lot about a minute after M.M. started walking northbound on Notre Dame. The red truck does not appear on the video surveillance depicting M.M. walking northbound on Notre Dame through various parking lots. I find as a fact that M.M. was aware, as he walked northbound back to the bar, that he was walking alone and no one was following him.
244While M.M. was walking back to the bar, he pulled his hood over his head in preparation for the shooting. M.M. agreed that he did this in order to conceal himself. He did this so he would not get caught. I find as a fact that M.M. was able to appreciate his surroundings. He understood and considered that he needed to conceal his identity before going into the bar. His appreciation of his surroundings continued after the shooting, when he ran away, discarded his cell phone, pants, and the gun. I find as a fact that M.M. had the ability to perceive the reasonable and safe options available to him.
245M.M. testified that before he went to the bar, he consumed four pills and a sip of alcohol and he felt woozy. There is no evidence that M.M. consumed any other drugs or alcohol on the way to the bar, while he was at the bar, or when he left the bar. This was a period of close to two hours. The waitress recalled that M.M. ordered water. I find M.M.’s earlier consumption of intoxicants was no longer a factor by the time he committed the murder. This evidence does not leave me with a reasonable doubt about M.M.’s ability and/or capacity to appreciate and consider his surroundings and options.
246When asked the difficult questions in this case, about the options he had to seek help, I found M.M. dismissed each option with overly simplistic answers. He appeared intent on maintaining his narrative that there was nothing he could have done.
247I reject M.M.’s evidence that he did not think there was anything the police could do to help him. I accept M.M.’s evidence about growing up in a family that had some distrust of the police. I accept his evidence about his perception that the police unfairly targeted black people. I accept that M.M. would be reluctant to call the police if he found himself in trouble. However, I do not accept that M.M., even with those life experiences, would not call the police if he thought his life was in imminent danger, or if he thought that his loved ones were going to be killed. M.M. had grown up in Canada and would know that there are emergency services available to people who are in imminent danger, including an ambulance if someone is severely injured or dying, or the police if someone’s safety is threatened. I find as a fact that M.M. knew that if he called the police, they would take immediate steps to protect his life and the life of his loved ones.
Analysis
248I will now go on to consider the issues in this case.
Issue 1 - Has the Crown proven M.M. committed first-degree murder?
249Section 229 (a) of the Criminal Code provides that culpable homicide is murder where the person who cause the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensures or not.
250There are two forms of murder, first-degree murder and second-degree murder. Section 231(2) of the Criminal Code provides that murder is first-degree murder when it is planned and deliberate.
251I am satisfied beyond a reasonable doubt that M.M. committed the offence of murder. It is not disputed that M.M. caused the death of Cabigon by shooting him in the back of the head. It is not disputed that when M.M. did this, he intended to kill Cabigon. The issue in this case is whether the Crown has proven, beyond a reasonable doubt, that the murder was both planned and deliberate.
252A planned murder is one that is committed as a result of a calculated scheme or plan that has been carefully thought out, the nature and consequences of which have been considered and weighed. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a planned murder: R. v. Tremble, 2017 ONCA 671, 354 C.C.C. (3d) 27, at para. 93; R. v. Ally, 2022 ONCA 558, 417 C.C.C. (3d) 1, at para. 43; R. v. Campbell, 2020 ONCA 221, 149 O.R. (3d) 365, at para. 33, leave to appeal refused, [2021] S.C.C.A. No. 100.
253A plan does not have to be complicated. It may be very simple and easy to set up. It might be carried out immediately or carried out after the passage of time: R. v. Ally, at para. 43; R. v. Roebuck, 2024 ABCA 143, at para. 39.
254There is a distinction between an intent to kill and a plan to kill. A person can form the intent to kill another person seconds or minutes before the killing, but that does not necessarily mean that the killing was planned in the sense required by law. There must be additional evidence that the killing was the product of a calculated scheme arrived after weighing the nature and consequence of that scheme. Further, there must be evidence that having made the plan, the accused weighed the pros and cons of putting the plan into action: R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 40.
255Deliberation requires that the murder be carefully thought out. It cannot be impulsive, hasty, or rash. Deliberation means considered, not impulsive, cautious, carefully thought out, not hasty or rash, slow in deciding: R. v. Ally, at para. 43; R. v. Spence, 2017 ONCA 619, at para. 74.
256I am satisfied beyond a reasonable doubt that there was a plan. The plan was formulated by N.S. as the group of males were walking southbound along Notre Dame Avenue. The plan was that M.M. would go back to the bar and shoot Cabigon in the head. M.M. testified that he was told to “notch him” which meant kill him, “wig” him which meant a head shot, “pepper him” which meant multiple shots, and that there be no leg shots. I am satisfied beyond a reasonable doubt that this plan, although simple, was thought out and calculated. Cabigon would be taken out quickly, with a shot to the head. No leg shots. This would allow the shooter to get in, quickly kill Cabigon, and then quickly get out.
257The defence submits that the plan must have been M.M.’s plan, in order for him to be found guilty of first-degree murder. I do not agree. A first-degree murder may be planned by one person and carried out by that person, another person, or a combination of people working together. An aider may be guilty of first-degree murder if they do something to assist the perpetrator in a planned and deliberate murder, and when the aider rendered the assistance, they did so for the purpose of aiding the perpetrator in the commission of a planned and deliberate murder. Before the aider could be said to have the requisite purpose, the Crown must prove that the aider knew the murder was planned and deliberate. The law does not require the aider to have planned or deliberated the murder: R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, leave to appeal refused, [2007] S.C.C.A. No. 258, at para. 89.
258I am satisfied, beyond a reasonable doubt, that the murder in this case was planned by N.S. I am also satisfied beyond a reasonable doubt that M.M. knew it was planned, understood the plan, adopted the plan, and carried out the plan as a co-principal.
259What is more difficult is whether the murder was also the product of deliberation on the part of M.M., in the sense required by s. 231(2). When I assess the totality of the circumstances in this case, I have a reasonable doubt about whether, given the all of the surrounding circumstances, M.M.’s actions were the product of his deliberation.
260In reaching this conclusion, I have considered the following evidence:
a. A short and heated argument took place inside the bar shortly before N.S., T.K. and M.M. (“the group”) were kicked out of the bar;
b. The argument was mainly between N.S., Cabigon, and Hogan;
c. The group walked for approximately 6 minutes and 30 seconds before reaching the sidewalk north of the Tim Horton’s parking lot where they stopped;
d. N.S. was feeling angry and disrespected. N.S. was the person who wanted Cabigon killed;
e. The group spent approximately 1 minute and 27 seconds talking in front of Tim Horton’s. This appears to be when the plan to kill Cabigon is communicated to M.M. M.M. received the satchel containing the gun and walked back to Overtime alone;
f. For reasons set out earlier, I have a reasonable doubt about whether M.M. was threatened by N.S. to commit the murder and find that he may have been; and
g. If M.M. was threatened, given his personal circumstances at the time, this could have impacted on his ability to deliberate. Deliberation, in the sense required by s.231(2) requires a person to cautiously and carefully consider what they are about to do. I am not sure M.M. did that in this case. If I have a doubt about this, I must resolve it in favour of the accused.
261Given the totality of circumstances, including my doubt about the existence of a threat and my doubt about the impact this may have had on M.M.’s ability to deliberate in the cautious, well thought out manner required by the jurisprudence, I am not satisfied that the Crown has proven, beyond a reasonable doubt, that M.M. committed both a planned and deliberate murder.
262I am satisfied beyond a reasonable doubt that the Crown has proven that M.M. committed the offence of second-degree murder in the killing of Joe Cabigon.
Issue 2 – Should the murder be excused because it was committed under duress?
263Section 17 of the Criminal Code, R.S.C., 1985, c. C-46, precludes the excuse of duress for a person charged as a principal to murder.
264Prior to trial, M.M. filed an application challenging the constitutional validity of s. 17 of the Criminal Code. I received submissions and reserved my decision.
265I have decided to approach my decision in this case by first presuming that duress is available in law to a principal charged with murder. If the defence of duress is available in law, and the evidence gives an air of reality to the defence, M.M. would be entitled to an acquittal unless the Crown disproves one or more of the essential elements of the defence on a reasonable doubt standard: Aravena, at para. 27.
266This trial has proceeded as a trial before a Judge sitting alone. In these circumstances, I have decided that I will assume an air of reality and go on to determine whether the Crown has disproven one or more of the essential elements of duress, on a reasonable doubt standard. If I am satisfied, beyond a reasonable doubt, that the Crown has disproven one or more of the essential elements of duress, I need not decide whether s. 17 of the Criminal Code violates s. 7 of the Charter. The issue will be moot because even if duress was available, the Crown will have disproven, beyond a reasonable doubt, its availability in this case.
267If I am not satisfied that the Crown has met its burden, I will go on to decide whether s. 17 of the Criminal Code is unconstitutional and whether it should be struck down.
Legal excuses
268The law recognizes that there may be circumstances where “urgent situations of clear and imminent peril” make compliance with the law demonstrably impossible. In those circumstances, a person may be “excused” from breaking the law and they are to be acquitted. In Canada, necessity and duress are recognized as excuses to criminal conduct.
269An “excuse” recognizes the wrongfulness of the action but concludes that the circumstances under which it was committed should not attract criminal liability. At the heart of this excuse is the perceived injustice of punishing violations of the law in circumstances where the person had no other viable or reasonable choice available. The act is wrong, but it is excused because it was realistically unavoidable: R. v. Perka, (1984) 1984 CanLII 23 (SCC), 14 C.C.C. (3d) 385 at para. 28 and 35 (“Perka”).
270Duress and necessity are closely linked. The rationale for the excuses of duress and necessity is the perceived injustice of punishing violations of the law in circumstances where an accused had no viable or reasonable choice available but to commit the crime: Perka, at para. 35.
271The types of circumstances where duress and necessity arise have been described as circumstances “so emergent and the peril …so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable”. Further, the harm committed must be proportional to the harm sought be avoided: Perka, at para. 40-44.
272The Supreme Court has cautioned that duress and necessity “must be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. Courts must apply strict standards for the application of the duress to prevent its abuse: Perka at para. 38; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at para. 59 (“Ruzic”).
Duress
273Duress is properly characterized as an “excuse” which absolves an accused of personal accountability for a crime by focusing, not on the wrongful act, but rather on the circumstances of the act and the accused's personal capacity to avoid it. The accused’s actions are “excused” because they acted in response to an external threat that left them with no realistic choice but to commit the crime. The act remains wrong, but the accused will not be punished because their actions are viewed as “morally involuntary”: R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, at para. 23 (“Ryan”); Ruzic, at para. 24.
274The law of duress is both statutory and judge made. In Ryan, the Supreme Court of Canada held that the essential elements of the statutory and common law duress excuses are now “largely the same” but some differences remain. First, the statutory excuse applies to principals while the common law excuse is available to parties to an offence. Second, the statutory version of the excuse excludes a list of offences, making duress unavailable to principals charged with those crimes”: Ryan, at para. 80-84.
275Section 17 of the Criminal Code sets out the statutory excuse of duress as it applies to a person who has committed a criminal offence. It reads:
A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).
276In Ruzic, the Supreme Court partially struck down s. 17 and removed the immediacy and presence provisions because they infringed the fundamental principle of moral involuntariness protected by s. 7 of the Charter. The court went on to supplement the interpretation and application of the provision by reading in elements from the common law excuse of duress which are: (a) the requirement that there be no safe avenue of escape, (b) that there be a close temporal connection between the threat and the harm threatened, and (c) there must be proportionality between the threat and the criminal act to be executed: Ruzic, at para. 90; Ryan, at para. 44-46.
277In Ryan, the Supreme Court at para. 55 held that the common law excuse of duress following Ruzic, is comprised of the following elements, all of which must exist:
an explicit or implicit threat of death or bodily harm proffered against the accused or a third person. The threat may be of future harm. Although, traditionally, the degree of bodily harm was characterized as "grievous", the issue of severity is better dealt with at the proportionality stage, which acts as the threshold for the appropriate degree of bodily harm;
the accused reasonably believed that the threat would be carried out;
the non-existence of a safe avenue of escape, evaluated on a modified objective standard;
a close temporal connection between the threat and the harm threatened;
proportionality between the harm threatened and the harm inflicted by the accused. This is also evaluated on a modified objective standard; and
the accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.
278Duress excuses criminal conduct because the party’s actions in committing the crime are considered “involuntary” in the sense that the party does not have a reasonable “choice” but to break the law. There is simply “no legal way” out of the situation and compliance with the law is “demonstrably impossible”. In those circumstances, where there is truly no choice, the law considers the party’s decision to commit the crime to be involuntary. This sort of involuntariness has been described as “moral” or “normative” involuntariness: Perka, at para. 34; R. v. Hibbert, 1995 CanLII 110 (SCC), [1995] 2 S.C.R. 973, at para. 55; Ruzic, at para. 29-30.
279In Ruzic, the Supreme Court found that moral involuntariness is a principle that is deserving of protection under s.7 of the Charter. The Court found at para. 47:
Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, similarly to physical involuntariness, deserves protection under s. 7 of the Charter. It is a principle of fundamental justice that only voluntary conduct — behaviour that is the product of a free will and controlled body, unhindered by external constraints — should attract the penalty and stigma of criminal liability. Depriving a person of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice. The ensuing deprivation of liberty and stigma would have been imposed in violation of the tenets of fundamental justice and would thus infringe s. 7 of the Charter.
280The killing of an innocent person is the most heinous crime imaginable. Under what circumstances, if any, such a killing could ever be excused has been the subject of ongoing debate for hundreds of years. Currently, s.17 of the Criminal Code prevents the use of duress as an excuse for a principal to murder. However, there are conflicting appellate decisions about whether s. 17 might violate s.7 of the Charter: Aravena; R. v. Willis, 2016 MBCA 113 (“Willis”).
281In Aravena, the Ontario Court of Appeal held that duress was available to an accused charged as a party to murder. In its decision, the Court suggested, in obiter, that a per se rule that excludes the defence of duress in all murder cases may be arbitrary and contrary to the constitutionally protected fundamental principle that the law does not punish morally involuntary actions: Aravena, at paras. 83 and 84.
282However, the court cautioned that in taking the view that duress could excuse a choice to assist in a murder, such a defence is “strictly limited” and is “not easily accessible” in any situation. The court went on to say, at para. 67:
Moreover, the greater the harm caused by yielding to the threat, the more difficult it will be for an accused to make out the defence, particularly on the proportionality element. If an accused chooses to assist in a murder, it may well be that nothing short of a threat of immediate death to that person or some other person could ever satisfy the proportionality requirement.
283I will now turn to the essential elements of duress, and whether they exist in this case, mindful of the Crown’s heavy burden.
Did N.S. threaten to kill M.M. and his family?
284I do not accept M.M.’s evidence that he was threatened. For reasons set out earlier, I found M.M.’s evidence to lack credibility on this issue.
285However, even though I do not accept M.M.’s evidence on this point, I am left in reasonable doubt by it. Put another way, I am not sure if M.M. was threatened or not.
286M.M. is the only witness to testify in this trial about the threat, and I have serious concerns about his credibility as it pertains to the circumstances surrounding the murder. However, other evidence in this case points to N.S. as the person angry with Cabigon for disrespecting him and being the person who asked M.M. to shoot if necessary if the argument with Cabigon and Hogan escalated. In this context, it may be that N.S., in his desire for revenge, resorted to threatening M.M. to commit murder.
287The Crown did not challenge M.M. on his testimony that he was threatened. The Crown proceeded on the basis that even if there had been a threat, other essential elements of duress do not arise on the facts of this case.
288I am not satisfied, beyond a reasonable doubt, that this essential element of duress is absent in this case.
Did M.M. reasonably believe that N.S. would carry out this threat?
289If there was a threat, I am also left with a reasonable doubt that M.M. could have reasonably believed that N.S. would carry out the threat to kill him and his family. In other words, having accepted that a threat may have been made, it is possible that M.M. could reasonably have believed that N.S. would carry out that threat.
290In reaching this conclusion, I have considered N.S.’s involvement in the drug trade, the power imbalance between N.S. and M.M., M.M.’s age, M.M.’s dependence on N.S., the history of violence between N.S. and M.M., and the fact that N.S. owned and possessed an illegal firearm.
291I am not satisfied, beyond a reasonable doubt, that this essential element of duress is absent in this case.
Did M.M. have no safe way to avoid the harm N.S. threatened?
292Duress excuses criminal behaviour because of the perceived injustice of punishing violations of the law in circumstances where a person has no safe way to avoid the harm threatened. A safe means of escape ordinarily refers to an obvious, safe means of escape, such as fleeing or running away from the person who made the threats or seeking help from the police or other authorities.
293On a purely objective basis, I am satisfied beyond a reasonable doubt that M.M. had obvious safe ways available to him to preserve his life, and his family’s life, without having to kill Cabigon. These included:
(a) running away;
(b) hiding and using his cell phone to call for assistance. Based on the maps and photos tendered as evidence, there were several areas where M.M. could have stopped and concealed himself while he made a phone call;
(c) going back to the Tim Horton’s store, once N.S. and T.K. left, and requesting assistance from the employees or members of the public inside;
(d) going to one of the other businesses along Notre Dame Avenue that were open at the time and requesting assistance from the employees or members of the public inside;
(e) flagging down one of the many vehicles passing by him on Notre Dame and asking for assistance;
(f) using his cell phone to call 911 or the Greater Sudbury Police as he was walking back to the bar (or while hiding);
(g) using his cell phone to call the Toronto Police Service to alert them of the danger to his family as he was walking back to the bar (or while hiding); and
(h) seeking the assistance from the employees or members of the public inside Overtime, including asking them to call the police.
294However, the test I must apply is not a purely objective one. The test to be applied is a modified objective one. I must consider whether M.M. had a safe way to avoid the threat of death, from the perspective of a reasonable person, in the same circumstances as M.M. found himself to be, and who shares M.M.’s personal characteristics such as his age, gender, and background.
295This modified objective test was described in R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3 as follows, at paras. 32-33:
A subjective test would be met if the person believed he or she was in imminent peril with no reasonable legal alternative to committing the offence. Conversely, an objective test would not assess what the accused believed; it would consider whether in fact the person was in peril with no reasonable legal alternative. A modified objective test falls somewhere between the two. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person.
While an accused's perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused, those perceptions remain relevant only so long as they are reasonable. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be a reasonable basis for the accused's belief and actions, but it would be proper to take into account circumstances that legitimately affect the accused person's ability to evaluate his situation.
296In this case, M.M. was a 16-year-old black male who had run away from home. He had not finished high school. He came from a poor socio-economic background, had an abusive father, and experienced overt and systemic racism in his life. He had a distrust of the police. During his time in the drug trade, M.M. had experienced N.S.’s violence, in the form of beatings, when M.M. did something that N.S. did not approve of. N.S. had bragged to M.M. that he was a killer and had killed in the past.
297M.M. was also someone who had lived in Canada since the age of 5. He had attended high school before dropping out. M.M. was resourceful enough to be able to travel far from his home to Thunder Bay and Sudbury with the assistance of others. He was able to earn and save money while living in Thunder Bay. He had been living in Sudbury since March and had lived mostly on his own in various trap houses. He had a cell phone and knew how to use the internet. He would travel, mostly by himself, through Sudbury by foot or by cab to drop off drugs to users. There is no evidence that M.M. suffers from any cognitive difficulties that would interfere with his ability to understand or appreciate what was going on around him.
298It was suggested in submissions that I should consider how the trauma experienced by M.M. with his father growing up fed into his relationship with N.S. and that M.M. had developed a “trauma bond” with N.S. It was also suggested that M.M. had developed a “learned helplessness” in his relationship with N.S. much like having “Stockholm syndrome”.
299In my view, this submission asks me to take judicial notice of psychological factors that are beyond everyday experience. The concepts of “trauma bonding” and “learned helplessness” are not notorious or capable of immediate and accurate demonstration.
300In R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, McLachlin C.J. described the limits of judicial notice at para. 48, as follows:
Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
301The closer a fact approaches a dispositive issue, the more a court ought to insist on strict compliance with this test: R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at paras. 61-62; R. v. J.M., 2021 ONCA 150, at para. 33.
302Whether M.M. suffered from a particular psychological condition such as trauma bonding or learned helplessness, that could have impacted his ability to perceive the options available to him to avoid the harm threatened is an issue that touches upon a dispositive issue. I find that the existence of these conditions, if they existed, is something that would require the assistance of expert evidence, under oath, tested by cross-examination: R. v. J.M., at para. 35.
303I have considered the perspective of a reasonable person, in the same circumstances as M.M. found himself to be, and who shares M.M.’s personal characteristics such as his age, gender, and background, in assessing whether such a reasonable person would have perceived that there were safe ways to avoid the harm threatened by N.S. In my view, such a reasonable person would have understood that there were reasonable and safe options available. The options I have set out above are very simple: run, hide, and/or call for help. Call the police or ask someone else to call the police. I find that in the circumstances of this case, these were not complicated or heroic measures for someone with M.M.’s personal characteristics or background to have appreciated and considered.
304The law must require a person, faced with a kill or be killed scenario, to examine their surroundings and consider whether there are safe options to avoid killing an innocent person, if they are capable of doing so.
305In this case, there was time to think as M.M. walked alone, for over five minutes, along a busy street, back to Overtime. He was alone. No one was beside him, interfering with his ability to contemplate his circumstances.
306When the multiple obvious safe options were put to M.M., he testified that he didn’t really consider any of them because his mind was consumed with fear about what would happen to him and his family. Yet, M.M. was able to think about avoiding detection and was able to take steps to conceal his identity by putting his hood up over his head as he walked back to Overtime.
307I have considered M.M.’s evidence that he did not believe the police could help him. I accept that M.M. distrusted the police, for a variety of reasons. However, there was no evidence that M.M. had ever been denied assistance by the police. Having grown up in Canada, M.M. was aware of the option of calling 911. He would know that if he or a loved one was injured, he could call an ambulance. He would know if he or a loved one was in danger, he could call the police. The test to be applied is not purely subjective. If it were, a person charged with murder could simply state that they didn’t trust the police and so did not seek help when they could have. In my view, Canadian society would not tolerate the killing of an innocent person, in circumstances where the killer could have safely called the police.
308As stated by Mainella J.A. in Willis at para. 117: “[r]esisting a threat may be a hard choice, but so is the decision to kill an innocent person”. In this case, calling the police may have been a hard choice for M.M., but it was a reasonable and available safe way to address the threat.
309I am satisfied, beyond a reasonable doubt, that M.M. had the ability to understand his surroundings and to understand that there were reasonable and safe alternatives available to him. I am satisfied that M.M. knew that if the police were called, the police would be protected him and his family.
310I find that, in the circumstances of this case, I am satisfied beyond a reasonable doubt, on a modified objective basis, that there were obvious and reasonable safe alternatives that M.M. could have availed himself of to avoid the harm threatened. M.M. could have run away or hidden behind a building and used his cell phone to call the police for help. No one was around to stop him. He could have flagged down one of the many vehicles driving by and asked for help. When M.M. went inside Overtime, M.M. knew he was alone and could have asked anyone inside to help him, and to call the police.
311I am satisfied, beyond a reasonable doubt, that this is not a case where there was simply “no legal way” out of the situation and compliance with the law was “demonstrably impossible”, such that M.M.’s actions can be said to have been morally involuntary.
312On the totality of the evidence, I am satisfied that the Crown has proven, beyond a reasonable doubt, that M.M. had a safe way to avoid the harm N.S. threatened.
313My conclusion on this point is sufficient to find that duress is not available in the circumstances of this case. However, I will go on and consider the remaining essential elements for the sake of completeness.
Was there a close temporal connection between the threat and the harm threatened?
314Duress only applies in circumstances where there is a close temporal connection between the threat and the harm threatened. The first purpose of the close temporal connection test is to ensure that there truly was no safe avenue of escape for the accused. If the threat is too far removed from the accused’s illegal acts, it will be difficult to conclude that a reasonable person, similarly situated, had no option but to commit the offence. There needs to be a degree of pressure placed on the accused. The second purpose of this requirement is to ensure that it is reasonable to believe that the threat put so much pressure on the accused that between the threat and the commission of the offence the accused “lost the ability to act freely”: Ryan, at para. 69.
315In Ruzic, the Supreme Court held at para. 53 that the temporal connection requirement did not preclude the availability of duress in cases where the threat is of future harm. In that case, the threat was that if Ms. Ruzic did not smuggle drugs into Canada, something that would take several days, her mother would be harmed in another country. The court accepted Ms. Ruzic’s evidence that she could not contact the police to prevent the harm threatened because the police in her country could not be trusted.
316In this case, if N.S. found out, later, that M.M. did not commit the murder, harm would come to M.M. and his family. I am satisfied that the pressure of this threat, if it was made, would have remained on M.M.’s mind as he walked back to Overtime. I am also satisfied that the threat would have been made in close proximity in time to the murder. This provides it with a temporal connection. However, as I have already discussed, I am not satisfied that the threat was such that M.M. “lost the ability to act freely”.
317There is some uncertainty in the law with respect to how this element would apply to a case involving murder. How temporally close does a threat have to be, to excuse the killing of an innocent person? As opposed to excusing the importation of drugs? Given the uncertainty, and applying Ruzic strictly, I will resolve this element in favour of the accused.
Was the harm caused disproportionate to the harm threatened?
318The issue of proportionality, in the context of murder, is a complex and difficult issue to address. It is something that has been debated for hundreds of years. It is the subject of commentary and disagreement amongst various courts, countries, and academics. Some say that the murder of an innocent person can never be proportionate to the harm threatened, even if the harm threatened is death: see Willis. Others say it could be proportionate, depending on the circumstances: see Aravena.
319In Ryan, the Supreme Court set out the elements of proportionality as follows at para. 73:
The first element of proportionality requires that the harm threatened was equal to or greater than the harm inflicted by the accused (Ruzic, at para. 62; also see R. v. Latimer, 2001 SCC 1, [2001] 1 S.C.R. 3, at para. 31). The second element of proportionality requires a more in-depth analysis of the acts of the accused and a determination as to whether they accord with what society expects from a reasonable person similarly situated in that particular circumstance. It is at this stage that we examine if the accused demonstrated "normal" resistance to the threat. Given that the defence of duress "evolved from attempts at striking a proper balance between those conflicting interests of the accused, of the victims and of society" (Ruzic, at para. 60), proportionality measured on a modified objective standard is key.
320In this case, the harm threatened was equal to the harm inflicted by the accused. On M.M.’s evidence, it was a kill or be killed scenario. As such, the first element of proportionality arises on the facts of this case.
321The second element of proportionality is more difficult in this case. What would society expect from a reasonable person, similarly situated, in the circumstances of this case? What would society expect from someone, with M.M.’s background, to do when faced with a demand that he kill an innocent person?
322In Aravena, the Ontario Court of Appeal suggested that it may be that killing an innocent person can only be found to be proportionate where there is an immediate threat to cause death: Aravena, at para. 67. This appears to run counter to the Supreme Court’s decision in Ruzic that there does not need to be an immediate threat. This highlights the difficulties in applying the current legal principles surrounding duress to the offence of murder. Society may expect more from an individual faced with a demand that they kill an innocent person.
323While the law currently does not require an immediate threat, or the immediate presence of the person making the threat, for duress to be available, I am satisfied that these facts remain relevant to the proportionality inquiry. They are one of the factors to be considered, along with all of the other surrounding circumstances, in determining whether the accused acted involuntarily.
324Proportionality is inherent in the principle of moral involuntariness. It is measured on the basis of society’s expectation of appropriate and normal resistance to pressure, on a modified objective standard: Ryan at para. 70.
325I have already found that M.M. had time to think as he walked back to Overtime, had the ability to look around and process the circumstances surrounding him, and he had the ability to understand that he had other reasonable safe options available to him to avoid the harm threatened. I find that M.M.’s response was not what society would expect from someone, with M.M.’s characteristics, faced with obvious safe options to avoid the harm and avoid killing an innocent person. M.M. had realistic choices, and in those circumstances, his actions cannot be said to be morally involuntary.
326I am satisfied, beyond a reasonable doubt, that M.M.’s response, in the circumstances of this case, did not meet the second element of proportionality. I agree with the comments in Aravena, although obiter, that in the context of murder, the circumstances must be so immediate and pressing that an accused’s will is overborn and that he or she had no choice but to kill. I am satisfied, beyond a reasonable doubt, on a modified objective test, that M.M.’s response in this case was not proportional to the circumstances surrounding the threat he faced in this case.
Was M.M. a party to a conspiracy or association whereby he would be subject to compulsion and did M.M. actually know that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association?
327A person, who by association with a criminal organization or criminal endeavor, voluntarily assumes the risk of being compelled by threats to engage in criminal conduct, cannot rely on that compulsion to excuse their criminal conduct. This is because a person who freely and knowingly subjects themselves to the risk that they will be coerced into committing a crime voluntarily assumes the risk of acting under that coercion: Ryan, at para. 77; Aravena, at para. 107.
328This is consistent with the principle of moral involuntariness. An accused who, because of his or her voluntary involvement with a criminal enterprise, and with knowledge that coercion or threats to commit a crime are a possibility, cannot claim there was no safe avenue of escape, nor can he or she truly be found to have committed the resulting offence in a morally involuntary manner: Ryan, at para. 77.
329In Aravena, Doherty, and G. Pardu JJA described the policy reason behind this exception at para. 113:
The criminal association exception properly focuses the inquiry on whether an accused willingly chose to subject himself to the risk he would be coerced into committing a crime. Not only is that focus consistent with the principle of moral voluntariness, it also furthers legitimate policy concerns which demand strict limitations on the availability of the defence, especially in the context of crimes committed for or on behalf of criminal organizations.
330The Crown does not have to prove that the accused knew the criminal organization or endeavour might compel him to commit the crime charged. The law focuses on the accused’s willing assumption of the risk he might be coerced into committing a crime, and not the specific criminal activity, either foreseen or eventually committed as a result of coercion. The Crown must prove, beyond a reasonable doubt, that the accused knew that their participation in a conspiracy or criminal association came with a risk of coercion and/or threats to commit a crime: Aravena, at para. 108; Ryan, at para. 75; R. v. Li(2002), 2002 CanLII 18077 (ON CA), 162 C.C.C. (3d) 360 (Ont. C.A.), at paras. 20-33.
331I am satisfied, beyond a reasonable doubt, that M.M. voluntarily joined a criminal enterprise or association when he chose to work with others and traffic in drugs in Thunder Bay and in Sudbury. Drug trafficking is a criminal enterprise. It involves the supply of illegal drugs. In this case, M.M. admits that he was fronted illegal drugs (crack cocaine) from drug suppliers, brought to trap houses, put in touch with users, sold the drugs to users, paid the suppliers back, and kept any profit for his own use. Despite the issues he had with N.S., M.M. testified that he wanted to remain in Sudbury and wanted to continue making money by selling drugs.
332M.M. submits that he did not know he would be subject to compulsion by N.S. or those involved in the drug trade, to commit a criminal offence. I reject his evidence on this point. M.M. had been subjected to violence within the drug trade when he was robbed of drugs he was supposed to sell. N.S. assaulted M.M. and made him pay back the money for the drugs he lost in the robbery. N.S. told M.M. that if he didn’t sell drugs, he would be severely beaten. N.S. assaulted M.M. when he thought M.M. hadn’t given him all the money back when he returned from a store. M.M. knew N.S. carried a gun. M.M. knew that N.S. bragged about being violent to other people.
333In the context of this evidence, I reject M.M.’s evidence that he didn’t know that he would be coerced by N.S. or by others in the drug trade to commit a crime. It is true that M.M. was willing to commit crimes at the request of N.S. without coercion, such as carrying an illegal handgun. However, I am satisfied beyond a reasonable doubt that M.M. knew that if he didn’t do what N.S. told him to do, including committing a crime such as carrying an illegal handgun, he would be subjected to violence and coercion. I am satisfied beyond a reasonable doubt that, despite this knowledge, M.M. voluntarily choose to continue working with N.S. selling drugs. M.M.’s reasons for wanting to stay in Sudbury and sell drugs were complicated, but in the end, this was his voluntary choice.
334When M.M. attended the bar on April 21, 2023, he was supposed to sell the drugs provided by N.S. M.M. knew that N.S. brought a firearm to the bar. As the evening progressed, M.M. was asked and agreed to hold N.S.’s gun and to use the gun if necessary. It could not have come as any surprise to M.M. that N.S. would later tell him to use the gun on the individuals he had been arguing with, and that N.S. would back that request up with coercion. In this trial, N.S. has been described by M.M. as an abusive, violent, drug supplier.
335I am satisfied that the Crown has proven beyond a reasonable doubt that M.M. was part of a criminal association or criminal enterprise whereby he would be subject to compulsion and that M.M. knew that threats and coercion to commit a criminal offence were a possible result of this criminal association.
336In the end, I am satisfied, beyond a reasonable doubt, that at least one of the essential elements of duress does not arise in this case. As such, I am satisfied beyond a reasonable doubt that the actions of M.M. should not be excused on the basis of duress, even if it had been available to him in law.
Issue 3 – Should section 17 of the Criminal Code be struck down as it applies to murder?
337Given that I have found, beyond a reasonable doubt, that essential elements of duress are absent in this case, I decline to rule on the constitutional validity of s. 17 of the Criminal Code. Even if duress was an available excuse to murder, it does not excuse the actions of M.M. on the facts of this case as I have found them to be.
Issue 4 - Did M.M. possess a firearm with intent to commit an offence?
338The essential elements of this offence are that the accused knowingly possessed a firearm, and at the time he possessed it, he intended to commit a criminal offence. The Crown must prove each essential element of this offence beyond a reasonable doubt.
339There are two points in time when M.M. knowingly possessed a firearm. The first was inside the bar when N.S. told M.M. to hold it and shoot if needed. The second was when he carried it back to the bar with the intention of using it to kill Cabigon.
Inside the bar
340The defence submits that when M.M. possessed the firearm inside the bar, he did not intend to use it to commit a criminal offence. The defence points to M.M.’s evidence that he did not want to use the gun and did not want to shoot anybody. The defence does not suggest that M.M. possessed the gun inside the bar, because of any coercion by N.S.
341I am satisfied, beyond a reasonable doubt, that when M.M. possessed the firearm inside the bar, he did so with the intent to use it. M.M. acknowledged that he was thinking about Hogan having a gun and that he thought he might have to use the gun if things escalated. At one point, M.M. had his hand around the grip of the gun. This was when he was concerned that Hogan might have a gun. On all of the evidence, I am satisfied beyond a reasonable doubt that M.M. had the intent to use the gun, if needed, while he was inside the bar. He may not have wanted to, but I am satisfied that he was prepared to, and intended to, if need be. Discharging a firearm inside a crowded bar would have been a criminal offence.
Outside the bar
342In the event that I am incorrect with respect to M.M.’s possession of the firearm inside the bar, I am also satisfied beyond a reasonable doubt, that when M.M. possessed the firearm as he walked back to Overtime, he intended to use it to kill Cabigon. This meets all of the essential elements of this offence.
343The further issue I must determine is whether M.M.’s possession of the firearm, with an intent to kill, should be excused on the basis of duress.
Issue 5 – If M.M. possessed the firearm with the intent to commit an offence, should he be excused from criminal liability on the basis of duress?
344Given my findings with respect to duress, I am satisfied beyond a reasonable doubt that M.M. had options available to him other than to possess the firearm for the purpose of killing Cabigon. He could have thrown the gun away and asked for assistance.
345Further, I have found that M.M. was involved in a criminal enterprise with N.S. and knew that if he did not do what N.S. wanted him to do, including a crime, that he would be subject to coercion. I find that M.M. knew that if he refused to take the gun, N.S. would use coercion to make him take the gun and use it.
346I am satisfied, beyond a reasonable doubt, that M.M.’s actions should not be excused on the basis of duress.
Conclusion
347With respect to count 1, I am satisfied, beyond a reasonable doubt, that M.M. committed second-degree murder when he shot and killed Joe Cabigon on April 21, 2023.
348With respect to count 2, I am satisfied, beyond a reasonable doubt, that on the same date M.M. possessed a firearm with the intent to commit a criminal offence.
349I am satisfied, beyond a reasonable doubt, that at least one of the essential elements of duress is absent in this case. As such, I am satisfied beyond a reasonable doubt that duress does not excuse M.M.’s actions in this case.
350I am satisfied beyond a reasonable doubt that M.M. is guilty of counts 4, 5, 6 and 7 in the indictment. Specifically, he carried a concealed weapon in an unauthorized manner (count 4), he had in possession a prohibited weapon without a license (count 5), he possessed a handgun without a license (count 6), and he possessed a prohibited firearm with readily accessible ammunition that was capable of being discharged, without an authorization or license (count 7)
351As such, I find M.M. guilty on count 1 of the lesser and included offence of second-degree murder, and guilty on counts 2, 4, 5, 6, and 7 on the indictment.
352The Crown concedes that it has not proven M.M.’s guilt on count 3 and M.M. will be found not guilty of that offence.
The Honourable Madam Justice S.K. Stothart
Released: July 13,2026
CITATION: R. v. M.M., 2026 ONSC 4031
COURT FILE NO.: CR-1607-24
DATE: 2026-07-13
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
M.M.
REASONS FOR JUDGMENT
S.K. Stothart J.
Released: July 13, 2026