R v Tuel and Wuor, 2023 YKSC 12

SUPREME COURT OF YUKON Citation: R v Tuel and Wuor , 2023 YKSC 12 Date: 20230217 S.C. No. 21-01503 Registry: Whitehorse BETWEEN: HIS MAJESTY THE KING AND MALAKAL KWONY TUEL and JOSEPH WUOR Before Chief Justice S.M. Duncan Counsel for the Crown Leo Lane Counsel for Defendant Malakal Tuel Dale Fedorchuk (by videoconference) Counsel for Defendant Joseph Wuor Lynn MacDiarmid This decision was delivered in the form of Oral Reasons on February 17, 2023. The Reasons has since been edited for publication without changing the substance. REASONS FOR DECISION [ 1 ] DUNCAN C.

J. (Oral): John Thomas Papequash was shot in the head in the early morning of December 1, 2019, outside the entrance to the 202 bar in downtown Whitehorse. Remarkably, he is alive but has no memory of the events of that evening. The identity of the shooter is disputed. [ 2 ] Malakal Tuel was charged with attempted murder of John Thomas (“JT”) Papequash. In the alternative, he was charged with other offences related to the shooting. The evidence of the Crown in support of the charges is circumstantial.

At trial, many witnesses testified but no one who testified saw who shot JT Papequash. [ 3 ] The Crown argues that the evidence leads to the only reasonable inference that Malakal Tuel shot JT Papequash with the requisite intent to establish attempted murder. [ 4 ] Malakal Tuel argues that there are other reasonable inferences that can be drawn from the evidence consistent with his innocence and the absence of evidence does not support the charges related to the shooting.

He says the circumstantial evidence on which the Crown’s theory is based is derived from conflicting narratives of the Crown’s witnesses and equivocal, inconclusive physical evidence. [ 5 ] The Crown has also charged Malakal Tuel and Joseph Wuor with other offences: possession of cocaine for the purpose of trafficking; possession of cash obtained by crime; occupying a vehicle in which they knew there was a prohibited firearm; possession of a loaded prohibited firearm without authorization or licence.

Joseph Wuor is charged with possessing a firearm while prohibited from doing so by court order, as is Malakal Tuel. The evidence in support of these charges, for the most part, is circumstantial. [ 6 ] Both Joseph Wuor and Malakal Tuel argue the evidence is insufficient to establish the essential elements of any of these offences. [ 7 ] I will summarize the background briefly, review the relevant legal principles, review the evidence on Counts 6 to 10, review the theories of the Crown and defence, set out the elements of those offences and provide my findings of facts and outcome.

I will then review the elements of the drug and firearm offences, assess the evidence in relation to those offences, provide my findings and outcome. Brief Background [ 8 ] The shooting incident occurred outside the 202 bar at closing time just before 2 a.m. on December 1, 2019. The two accused men and JT Papequash and his friends had been there for several hours. The two accused were initially friendly and buying drinks for people in the bar and talking to some of JT Papequash’s friends.

The two accused had not met JT Papequash’s friends before that evening. [ 9 ] Another group of six friends came into the bar later that evening. They did not know JT Papequash and his friends or the accused men. Their observations of events in the bar that evening and outside before and after the shooting were evidence in this case. [ 10 ] There were several altercations that evening between JT Papequash and the accused men. They were of short duration and

unknown cause. The two accused left the 202 bar together near closing time approximately five minutes before JT Papequash. WhenJT Papequash walked out of the bar, he was seen speaking with the shorter of the two men. Eight seconds later, a shot was heard andJT Papequash was on the ground. [11] Before the shooting, a man was seen walking towards the 202 entrance carrying a gun. After the shooting, a man was seenrunning towards Second Avenue (east) from the 202 entrance with a gun.

That man was seen to stop at the corner of the 202 building,point the gun towards the 202 entrance without firing, and then continue running towards the off-sales at the east side of the 202building. Another man was seen running away from the 202 entrance towards Third Avenue (west). [12] An empty shell casing was found that night in the location of the shooting. It came from a cartridge that was ejected from aTaurus PT 709 handgun that was found in the front passenger seat floor of the Toyota Tacoma owned by Malakal Tuel.

Malakal Tuel,who was driving, and Joseph Wuor, who was in the passenger seat, were taken into custody from the Toyota Tacoma as they wereleaving Malakal Tuel’s residence the following evening. The truck was packed with bags and bedding. [13] An unfired cartridge of the same kind as in the loaded Taurus PT 709 handgun seized from the Tacoma was found at the cornerof the 202 building, where the man with a gun had stopped after the shooting. [14] On the search of the Toyota Tacoma incidental to arrest, crack cocaine and phenacetin, an adulterant, were found in magnetickeyholders in some of the bags in the Tacoma.

Cash in the amount of $7,480 was found in a bag with Malakal Tuel’s wallet. Neither ofthe two accused had any drugs or weapons on their person when they were searched. Malakal Tuel had $1,505 in cash on his person andJoseph Wuor had $333 in cash on his person on arrest. Legal Principles Proof beyond a reasonable doubt [15] The accused may be convicted of an offence only if, on all the evidence in the case, the Crown establishes there is no reasonabledoubt that they are guilty of the offence.

Until that time, the accused are presumed innocent of any offence with which they are charged.The Crown must prove each essential element of the offence beyond a reasonable doubt. The standard does not apply to each individualpiece of evidence, but to the total body of evidence on which the Crown relies to prove guilt (R v Bouvier (1984), (ONCA), 11 CCC (3d) 257 at 264 Ont.CA). The burden of proof is on the Crown and it never shifts to the accused. [16] A reasonable doubt of the accused’s guilt is not a far-fetched or frivolous doubt.

It is not a doubt based on sympathy or prejudice(R v Lifchus, (SCC), [1997] 3 SCR 320 (“Lifchus”) at para. 36). It is not a doubt based on speculation. It is a doubtbased on reason and common sense.

It is a doubt that logically arises from the evidence or absence of evidence (Lifchus at para. 36).Whether evidence exculpating the accused raises a reasonable doubt must be assessed in the context of the evidence as a whole (R vRyon, 2019 ABCA 36; R v Morin, (SCC), [1988] 2 SCR 345; and R v Thomas, 2012 ONSC 6653). [17] A reasonable doubt may arise from the factors relating to the sincerity or reliability of the testimony of the Crown witnesses,undermining the Crown case (R v W(D), (SCC), [1991] 1 SCR 742). [18] Proof of guilt beyond a reasonable doubt does not require a standard of absolute certainty.

However, it is closer to absolutecertainty than it is to proof on a balance of probabilities (R v Starr, 2000 SCC 40 at para. 242). Circumstantial evidence [19] The court in R v Beckman, 2022 ABQB 298 (“Beckman”) at para. 93, provided a comprehensive

summary of the law oncircumstantial evidence. A

summary of the main points follows. [20] An assessment of circumstantial evidence requires two steps. The first is the same as the determination required with directevidence, such as eye-witness testimony and admissions, that is, whether the evidence is to be believed. If the evidence is believed, thenext step with circumstantial evidence is whether or not to draw an inference from that evidence.

Arguments may arise as to whether theevidence supports the inference to be drawn or whether the same evidence may support other inferences. [21] In a circumstantial case, an accused may only be convicted if the sole reasonable inference from the evidence is that the accusedis guilty. The evidence must not support reasonable exculpatory inferences.

As stated by the court in R v Villaroman, 2016 SCC 33(“Villaroman”) at paras. 18-22 and 25, if the evidence supports a reasonable inference that the accused is innocent, the accused cannot beconvicted (R v Griffin, 2009 SCC 28 at para. 33; R v Mayuran, 2021 SCC 31 at para. 38; R v Cooper, (SCC), [1978] 1SCR 860 at 865-66). [22] The court in R v Donison, 2021 ONSC 2297, expressed the question this way: [17] … the issue is whether guilt is the only reasonable inference, not the strongest reasonable inference to be drawn from thecircumstantial evidence.

An accused is entitled to an acquittal if there are reasonable inferences other than guilt, even if such alternativeinferences are not as strong or compelling as an inference of guilt. Put another way, a reasonable inference other than guilt is, bydefinition, a reasonable doubt [italics in original, bold added]. [23] There is a risk with inferential reasoning that the trier of fact may ignore gaps in the evidence, ignore alternative explanations, orignore evidence inconsistent with a preferred conclusion. The trier may rely on assumptions rather than evidence.

As noted by theSupreme Court of Canada in Villaroman: [26] … There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury mayunconsciously “fill in the blanks” or bridge gaps in the evidence to support the inference that the Crown invites it to draw. …

[24] The Supreme Court of Canada in Villaroman stated the trier of fact must consider “other plausible theor[ies]” and “otherreasonable possibilities” which are inconsistent with guilt. These alternatives must be reasonable. [37] … the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possibleconjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic andexperience applied to the evidence or the absence of evidence, not on speculation. [emphasis already added] [25] The court in Beckman tackled the distinction between reasonable inference and speculation, stating: [99] … Whether a proposed inference is or is not reasonable depends on (e.g.) • the evidence (or lack of evidence) claimed to support the inference, including the nature or scope and reliability of the supportingevidence (see R v Farnsworth, 2017 ABCA 358 at para 9). • the relationship of the supporting evidence to the claimed inference (“given this, we may infer that”), keeping in mind that aninference need not be based on “proven fact” (Villaroman at para 35). • the relationship of the claimed inference to other evidence and other reasonable inferences arising from the evidence; whether or notinferences are drawn must “accord with common sense, intuitive notions of probability and the unlikelihood of coincidence” (R vHandy, 2002 SCC 56 [”Handy”], Binnie J at para 42). • whether any assumptions of fact, themselves not supported by evidence, must be relied on to draw the claimed inferences. • the degree of complexity or coincidence required for the inference to be viable, keeping in mind that o human events may occur at intersections of coincidence – life may be surprising o reasonable inferences need not be the simplest or most easily drawn – “To hold otherwise would lead to the untenable conclusion thata difficult inference could never be reasonable and logical:” R v Katwaru, (ON CA), 153 CCC (3d) 433 (ONCA) …. [26] A reasonable inference arising from the absence of evidence must be based on the evidence admitted at trial and the absence ofevidence that would be expected as a matter of common sense to have accompanied that admitted evidence.

In other words, it is acontextual analysis. In order for a reasonable inference to be drawn from the absence of evidence, that absence of evidence must besignificant in relation to the evidence that was admitted. [27] In a circumstantial case, as in any case, the evidence must be considered as a whole.

The court in R v Hudson, 2021 ONCA 772,described this concept well as follows: [70] The assessment of circumstantial evidence … does not involve an examination of individual items of circumstantial evidence inisolation and separately from the rest, adjudging them against the criminal standard of proof and rejecting them if they are foundwanting, as surely they will be. No individual item of circumstantial evidence is ever likely to do so. They are the building blocks ofproof, not the final product.

It is commonplace that individual items of evidence adduced by the Crown examined separately and inisolation, have not a very strong probative value. But all the pieces have to be considered. Each one in relation to the whole. And it is thewhole of them, taken together, whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King(1941), (SCC), 77 CCC 75 (SCC) at 76. [28] Inferences consistent with innocence do not have to arise from proven facts. This wrongly obliges the accused to prove facts. Theassessment of reasonable doubt is made by considering all of the evidence.

If there are reasonable inferences other than guilt, theCrown’s evidence does not meet the standard of proof beyond a reasonable doubt (Villaroman at para. 35). [29] In order to convict in a circumstantial case, it is necessary to determine whether explaining the indications of guilt as coincidencewould “be an affront to common sense” (Handy at paras. 41, 45, 47, 110).

It is necessary for the co-existence and interaction of factspointing towards guilt to defy exculpatory explanation. [30] An individual “evidential element” that has no probative value because of its irrelevance or unreliability, should not beconsidered in the holistic assessment of the evidence. Eyewitness Identification [31] It is a generally accepted principle that identification evidence is inherently unreliable. The court in R v Gough, 2013 ONCA 137,wrote: [35] Being notoriously unreliable, eyewitness identification evidence calls for considerable caution by a trier of fact: R. v.

Nikolovski, (SCC), [1996] 3 S.C.R. 1197, at pp. 1209-10; R. v. Bardales, (SCC), [1996] 2 S.C.R. 461, at pp. 461-62; R. v. Burke, (SCC), [1996] 1 S.C.R. 474, at p. 498. It is generally the reliability, not the credibility, of theeyewitness’ identification that must be established. The danger is an honest but inaccurate identification: R. v. Alphonso, 2008 ONCA238, [2008] O.J.

No. 1248, at para. 5; Goran, at paras. 26-27. [36] The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspectwas known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to seethe suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful; R.

v. Carpenter, [1998] O.J. No. 1819 (C.A.), at para. 1; Nikolovski, at 1210; R. v. Francis (2002), (ON CA), 165O.A.C. 131, [2002] O.J. No. 4010, at para. 8. [37] As well, the judge must carefully scrutinize the witnesses’ description of the assailant. Generic descriptions have been consideredto be of little assistance; R. v. Boucher, 2007 ONCA 131, [2007] O.J. No. 722, at para. 21. The same can be said of in-dock or in-courtidentification; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at 468-69; R. v. Tebo (2003), (ON CA), 172 O.A.C.148 (Ont.

C.A.), at para. 19. [emphasis added] [32] It is a well-accepted principle that the usual test of credibility of witnesses does not apply in identification cases. An honest,convinced, and convincing witness may be mistaken. A trier of fact must test the accuracy of the evidence of the identity of the accusedby closely scrutinizing other evidence.

The trier must be satisfied of both the honesty of the witness and the correctness of theidentification. [3] … If the accuracy of the identification is left in doubt because the circumstances surrounding the identification are unfavorable, orsupporting evidence is lacking or weak, honesty of the witnesses will not suffice to raise the case to the requisite standard of proof and aconviction so founded is unsatisfactory and unsafe and will be set aside. … [R v Atfield, 1983 ABCA 44] [33] A

summary of the factors to guide the assessment of the value of eyewitness identification was set out in R v Powell, (ON SC), 2007 OJ No 4196 (“Powell”).

They include: time lapse between the identification and the events described;whether the witness is identifying a stranger or someone they have seen before; the physical circumstances of the sighting includingsight lines, lighting, and whether the witnesses were moving or stationary; duration of the observation; the emotional state of thewitness; whether they were distracted; how generic was the description; how did the description compare to others; has the identificationbeen influenced by others; and finally if there is other reliable circumstantial evidence capable of confirming or supporting theidentification evidence.

The existence of such evidence “can go a long way to minimizing the dangers inherent in eyewitnessidentification” (Powell at para 15). Cross-racial identification [34] The dangers inherent in cross-racial identification have also been recognized by the courts. It arises when the witness and theaccused person being identified are of different racial backgrounds. There is an increased risk of error with cross-racial identificationsand a greater degree of scrutiny is required (R v AC, (ON SC), 2009CanLII 46651; see also R v Jack, 2013 ONCA80; and R v Yigzaw, 2013 ONCA 547).

Courts are urged to be vigilant in assessing such evidence and to look for other corroboratingevidence in the determination of whether to accept it and how much weight to give it. (R v MacLellan, 2017 NSSC 307 at paras. 47-48;aff’d 2019 NSCA 2). In-dock identification [35] Identification of a stranger in court by a witness has limited evidentiary value. This is especially the case in a cross-racialidentification, and/or where the accused is the only racialized person in the courtroom. There are significant dangers in relying on suchevidence.

The Offences General [36] For each of the offences, the Crown must prove each essential element of the offence. These include that the accused is theperson who committed the alleged offence, the time and date of the alleged offence, and as well as the elements of the offence set out inthe Criminal Code. [37] I will first address counts 6 to 10 on the Indictment. I will review the evidence, the theories of the Crown and defence, and myfindings of facts and drawing of inferences. I will first determine whether or not the Crown has proved beyond a reasonable doubt thatMalakal Tuel was the shooter.

Then, I will review the elements of the offences, apply them to the evidence in this case, and state mydecision on each of the counts. Evidence [38] The evidence in this case consisted of testimony from witnesses who attended at or near the 202 that night, police officers whoattended at the scene of the 202 after the shooting, police officers who conducted scene security at the residence where the accused werearrested, and police officers who examined the contents of the accused’s vehicle.

Witnesses who saw or interacted with one or both ofthe two accused either before or after the shooting that night also testified. [39] At trial, there was video evidence from inside the 202, video and audio evidence from a dashcam of a taxicab outside of the 202,and video evidence from the Casa Loma bar, where the accused had been earlier that evening. Other exhibits included numerousphotographs taken inside and outside of the 202; photographs of the residence where the accused were arrested; and the two vehicles inthe name of Malakal Tuel and items found in each of those vehicles.

There were also witness statements, drawings, and maps. Threeexpert witnesses testified: a forensic firearms specialist; a DNA expert; and a police officer expert in drug dealing. [40] As is their right, neither of the accused testified nor called any evidence. Admissions and concessions [41] Two agreed statements of facts have been filed in this case. These will be referred to in my review and assessment of theevidence.

[ 42 ] Other admissions were made by Malakal Tuel in the course of the trial. [ 43 ] Malakal Tuel admits that he was the person seen on the 202 video surveillance footage identified by various witnesses as “the shorter black man” wearing a puffy beige or tan winter coat, a light grey baseball cap, dark pants and light shoes. [ 44 ] Malakal Tuel further admits that the 9 mm empty shell casing found outside the entrance of the 202 after the shooting came from a shot fired by the Taurus PT 709 semi-automatic handgun seized from the Toyota Tacoma vehicle. [ 45 ] Malakal Tuel admits that his DNA is on the Taurus PT 709 handgun. [ 46 ] Malakal Tuel concedes that that Taurus PT 709 handgun was a prohibited weapon within the meaning of the Criminal Code . [ 47 ] Malakal Tuel concedes the $7,480 in the Hugo Boss shoulder bag inside the Air Jordan backpack seized from the Toyota Tacoma belonged to him. [ 48 ] Joseph Wuor admits the 8.28 grams of crack cocaine in his black suitcase seized from the Toyota Tacoma is his, for personal use. [ 49 ] The Crown concedes that the in-dock identification of the accused Malakal Tuel by three witnesses (Lea Imbeau, Katherine Gallagher, Kamille Lemay) should be disregarded for lack of probative value.

The Crown further concedes that John Singh’s testimony that he heard Malakal Tuel threaten to shoot JT Papequash should be disregarded. [ 50 ] I have reviewed and considered all of the evidence and the absence of evidence in this case. In the following, I will review the evidence related to counts 6 to 10 chronologically that is most pertinent to my decision. Presence of the accused at the Casa Loma [ 51 ] Lorraine Young testified that while she was at the Casa Loma Bar, located in the Porter Creek subdivision north of Whitehorse, around 11 p.m. on November 30, 2019, two black men entered. She did not know them.

The video entered into evidence shows that there were two black men wearing the same clothes as the two black men seen on video at the 202 bar. The taller man was wearing a yellow hooded sweatshirt, black track pants with a white mottled stripe down each leg, and “Champion” brand running shoes with a thick white sole and dark upper material. The shorter man was wearing a puffy tan-coloured coat, light-grey baseball cap, dark blue pants that appear to be jeans, and light-coloured shoes. [ 52 ] The men left the Casa Loma shortly after entering, as they were asked to do so.

They went to their vehicle in the parking lot. Lorraine Young and her partner left the bar around the same time. She testified that the accused’s vehicle backed up in the parking lot and waited deliberately to follow her and her partner. A silver Toyota Tacoma drove immediately behind them, coming close to her partner’s vehicle. It passed Lorraine Young and her partner on Two Mile Hill on the way into downtown Whitehorse. Lorraine Young recognized the two men in the truck as the same ones who had been at the Casa Loma bar. She took photos showing a licence plate HZV11.

Later, she called police at the urging of her friend to report the incident of being followed too closely. [ 53 ] Lorraine Young’s evidence is not particularly relevant. However, the video evidence from the Casa Loma showing the clothing of the two men and the Toyota Tacoma in the parking lot, followed by the photos from Lorraine Young of the two men in the Toyota Tacoma with the licence plate HZV11 heading to downtown Whitehorse after 11 p.m. that evening forms part of the relevant circumstantial evidence in this case.

Interactions inside the 202 bar [ 54 ] The evidence about these interactions comes primarily from the 202 video surveillance tapes. Excerpts from 5 different cameras in the 202 bar were introduced as exhibits at trial. I have reviewed only the excerpts that were set out in the index agreed to among counsel and filed as Exhibit A to their submissions.

Some narrative was provided by various witnesses in court about these excerpts and I have also considered that evidence. [ 55 ] The times on the 202 video surveillance were confirmed to be accurate within three to five minutes of real time by Donald Tutin, one of the 202 doormen who testified at trial. [ 56 ] JT Papequash arrived at the 202 bar on November 30, 2019, at approximately 10:40 p.m. with four or five friends. [ 57 ] Malakal Tuel and his friend entered the 202 bar on November 30, 2019, at approximately 11:05 p.m. [ 58 ] Destyn Aird, one of the friends who arrived with JT Papequash, testified at trial that she met two African men that night at the 202 bar, one taller and one shorter.

She learned the taller one was named Joseph. He was wearing the yellow hooded sweatshirt, track pants with a stripe, and dark running shoes. At some point during the evening after he went outside of the bar, he returned wearing a winter jacket that was blue, red, and white. Destyn Aird testified that both men were friendly and nice and buying drinks for everyone. She spoke more to Joseph than to the shorter man. She is seen on the video excerpts on several occasions talking and laughing with Joseph.

On at least one occasion, she was seen going outside the 202 entrance with him and re-entering a few minutes later. [ 59 ] Destyn Aird was a credible and reliable witness for the most part. When discrepancies in her testimony were pointed out, she conceded where appropriate. She maintained her composure and her calmness when testifying about matters that were difficult.

Her memory was good. [ 60 ] The video evidence, the yellow hoody in the black suitcase found in the Toyota Tacoma truck on Joseph Wuor’s arrest, and Destyn Aird’s testimony that the name of the taller man was Joseph, all confirm that the taller man referred to by the witnesses in the 202 bar is Joseph Wuor.

[ 61 ] Several witnesses testified about altercations between the two accused and JT Papequash inside the 202 that evening. The 202 video surveillance shows three altercations consistent with the evidence of the witnesses. They happened at 12:33:50 to 12:34:00 a.m., 12:38:09 to 12:38:25 a.m., and 1:17:01 to 1:17:20 a.m. The first two occurred near the pool tables. JT Papequash shoved Malakal Tuel and slapped him on the upper arm or shoulder. Joseph Wuor who was sitting in a chair by a pool table got up and stood beside Malakal Tuel.

The altercation ended by Malakal Tuel and Joseph Wuor moving away from JT Papequash. [ 62 ] The second altercation occurred when JT Papequash walked up to Joseph Wuor and shoved him backwards with both hands. Malakal Tuel was standing beside Joseph Wuor, near the pool tables. The altercation ended when one of the off-duty staff of the 202, who was playing pool, separated them with the help of some of JT Papequash’s friends. [ 63 ] The third altercation occurred as JT Papequash and Joseph Wuor were walking past each other in opposite directions near the bar.

As they passed each other, JT Papequash intentionally bumped into Joseph Wuor, knocking him off balance. They both continued walking in the opposite direction and Joseph Wuor rejoined Malakal Tuel. [ 64 ] The video evidence also shows the bar manager, John Singh, who testified at trial, having a conversation with Malakal Tuel at 1:35:00 to 1:36:25 a.m., after the altercations. John Singh testified that earlier in the evening the atmosphere was easy-going and mellow, and everyone, including Malakal Tuel and his friend, and JT Papequash and his friends, were having a good time.

This changed with the altercations around the pool tables. John Singh had no knowledge of how it started or who started it and did not hear what the men were saying. He said he told both groups to walk away from each other or leave. He testified that he told Malakal Tuel to “take any fights outside the bar”. He testified that Malakal Tuel told him that he was going to shoot JT Papequash outside and after that mimed the gun sign that I will describe in a moment. However, this is inconsistent with John Singh’s preliminary inquiry testimony.

It is also inconsistent with the friendly discussion he had with Malakal Tuel apparent from the video. John Singh also did not call police or ask Malakal Tuel to leave the bar after hearing the alleged threat. [ 65 ] I have disregarded this aspect of his testimony and place minimal weight on his evidence that is outside of the video evidence. John Singh appears to have reinterpreted earlier events in the evening based on the shooting, resulting in discrepancies between his preliminary inquiry testimony and his trial testimony.

As a result, I will rely on his evidence that is supported by the video evidence. [ 66 ] After his conversation with John Singh, the video evidence shows Malakal Tuel continued his dancing moves and looked towards a group of people that included Destyn Aird and others who had come to the bar with JT Papequash. Destyn Aird testified that JT Papequash was outside the bar at that time, likely smoking a cigarette. Malakal Tuel made signs with his hand in the shape of a pistol and mimicked firing it. This was shown clearly on the video at 1:36:25 to 1:36:45 a.m.

Destyn Aird and John Singh also described it in their testimony. [ 67 ] The six friends who did not know the accused men or JT Papequash and his friends entered the 202 bar at 11:55 p.m. and sat together at a table in between the pool tables and the dance floor. They were Lea Imbeau, Josiane Lavoie, Kamille Lemay, Camille Gendron-Rossignol, Alberto Giminez, and Jaaved Singh.

One other person named Adrien joined them at some point, but he did not testify so I will refer to them as the six friends. [ 68 ] Two of the six friends testified that they saw at least one of the altercations between JT Papequash and Malakal Tuel and Joseph Wuor. [ 69 ] Lea Imbeau described seeing an altercation inside the bar between two black men, one shorter and one taller, and the victim of the shooting. She said she was about 2 metres away from the men. She heard angry tones of voice from the men but could not hear the words. It lasted a minute or so and there was no punching.

She said the shorter man was trying to pick a fight with the shooting victim and the taller one was holding him back. When she saw the victim after he had been shot she recognized him as the same person involved in the altercation. [ 70 ] Alberto Giminez testified he saw an altercation inside the 202 around the pool table between two black men, one of whom was taller than the other, and another group of people who included two native men, a blonde young woman, and another young woman with darker curlyish hair. This matches the description of JT Papequash and four of his friends.

Alberto Giminez did not know what the altercation was about and it ended when bar staff separated them and the black men left. His evidence was consistent with the video evidence. [ 71 ] There is no evidence about the reason for the altercations or about whether the men knew each other before that night. [ 72 ] Two of the six friends testified that they observed and briefly interacted with the shorter of the two black men inside the 202 that night. Lea Imbeau remembered noticing the shorter black man because of a young woman in a pink sweater who was with them and quite intoxicated.

She was moving in between the table with the six friends and the area where the two men were. Lea Imbeau spoke with the shorter man to tell him that she was bringing the intoxicated woman back to their table. The woman in the pink sweater can be seen on the video excerpts. [ 73 ] Kamille Lemay testified that Lea Imbeau pointed the two men out to her because there was a woman in a pink sweater who was intoxicated and trying to get the attention of the two men. She was moving back and forth between the table where Kamille Lemay and her friends were and the two men.

One of the men pushed the woman in the pink sweater away and told her to sit with Kamille Lemay and her friends. The woman sat with the six friends for a bit until she said she was going home. Events occurring outside the 202 from 1:48 a.m. to 1:56:39 a.m. Lahcen Amzoug [ 74 ] Lahcen Amzoug, a Whitehorse taxi driver, pulled up just west of and approximately 10 to 12 feet away from the 202 entrance at 1:48:16 a.m. He had a dashcamera with audio in his cab, excerpts of which were entered as exhibits at trial.

There were both interior and exterior facing cameras, so that he is visible on the video, in addition to the external view. When he drove up to the 202, his dashcam

view frame ended immediately west of the 202 entrance, that is, the 202 main door is not in view of the frame. [ 75 ] It is not disputed that the time on the dashcam is incorrect. It is agreed that the time is one hour, five minutes, and 21 seconds ahead of the time on the 202 video surveillance. [ 76 ] The Crown synchronized the video surveillance from Channel 2 in the 202 (the camera inside the 202 lobby with a view of the inside main door) with the video from the taxi dashcam. The Crown set out the times from both videos of the events in question from that evening. They are not in dispute.

Where the times are in bold, they indicate it is that camera that shows the activity. I have replicated it here as an appendix to these reasons and I accept the times as accurate. I will refer to the 202 surveillance video times in these reasons. [ 77 ] Lahcen Amzoug was in his taxicab outside the 202 for approximately eight minutes before the shooting, waiting for fares from patrons emerging from the bar. The windows of his cab were down.

While he was waiting outside the 202, Lahcen Amzoug, who is Moroccan, was speaking with a friend in Arabic on a hands-free phone. [ 78 ] At 1:56:22 a.m., a man walked quickly from the westerly direction of Third Avenue in front of the cab towards the 202 entrance. It is not disputed and it is clear from the dashcam that this is Joseph Wuor. Lahcen Amzoug testified that he specifically remembered seeing Joseph Wuor walk in front of his cab because he recognized him from the night before in the parking lot behind the 202 building. The night before, he had noticed Joseph Wuor’s walk.

It was fast with lengthy strides and he had the same walk the night of the shooting. [ 79 ] Lahcen Amzoug watched Joseph Wuor walk to the 202 entrance and speak to a shorter black man in a puffy, light coloured winter coat. The shorter man was standing by himself outside the door of the bar. He sometimes had his hands in his pockets of his coat: it was cold.

After Joseph Wuor spoke to the shorter man, the shorter man nodded his head. [ 80 ] At 1:56:29 a.m., seven seconds after Joseph Wuor walked in front of the taxicab, another man came out of the 202 door and immediately approached and began to speak with the shorter black man in the puffy coat.

Lahcen Amzoug could not hear what they were saying. [ 81 ] Lahcen Amzoug agreed at trial that he said in his police statement “it seemed like they didn’t know each other but to me it seemed like just somebody who was having drinks and he’s stepping out and just introducing himself to strangers you know what strangers just uh chat you up….” and “he just went straight to the short guy I don’t know what he said to, to him I thought it’s one of those guys who were having two drinks, happy just chatting strangers.” At trial, he testified that JT Papequash, who was identified later as the man who came out of the door, was moving his shoulders side to side and had his hands up in the air.

He said he looked kind of agitated. He watched this conversation for approximately five to eight seconds. [ 82 ] A fellow cab driver and friend then pulled up beside Lahcen Amzoug. At the very moment Lahcen Amzoug turned his head to his left, away from the 202 entrance, to speak with his friend, he heard a loud bang. This was at 1:56:38 a.m. This time was confirmed on the basis of the reaction of the doorman, Donny Tutin, at that second, as well as by the sound of the shot on the dashcam audio/video and the reaction of Lahcen Amzoug.

The interior dashcam shows him immediately looking towards the 202 entrance. [ 83 ] Lahcen Amzoug saw Joseph Wuor running west towards Third Avenue away from the 202 entrance in front of his cab, at 1:56:41 a.m., three seconds after the shot. He said Joseph Wuor looked surprised and panicked. Lahcen Amzoug saw the shorter black man run the opposite direction towards Second Avenue and the river. This is not visible on the dashcam. [ 84 ] Lahcen Amzoug did not see a gun. He did not see anyone fire a shot. He testified at trial he saw a bright flash like a muzzle flash from his cab when the shot occurred.

In cross-examination, he conceded, after watching the video at the time of the shot, there was no evidence of any muzzle flash. He was also clear that he knows nothing about guns. [ 85 ] Lahcen Amzoug was a credible and reliable witness. He was working at his job driving a cab that night and was sober. He was straightforward and careful in answering questions. He conceded where appropriate, such as with the muzzle flash. He did not know any of the other witnesses. He had a close and direct view of the 202 entrance from where he was parked.

He testified from a hotel room in Portugal, where he was on a family vacation that had been planned for many months. I accept his evidence. Tiffany Law [ 86 ] Tiffany Law was visiting her boyfriend who was working the night shift at the Elite Hotel located adjacent and to the west of the 202 bar. An acquaintance, Katherine (Katie) Gallagher, messaged her to join her in her vehicle outside the 202 for a smoke. Katie had stopped there because her friend Hannah had gone to use the washroom at the 202. Tiffany Law was not sure of the time.

Katie’s car was parked approximately three paces east of the main door of the bar, facing the bar with its headlights towards the bar. It was the second car from the east end of the line of cars in front of the 202. [ 87 ] Tiffany Law got into the back seat of Katie’s car behind the driver’s seat, where Katie was sitting. Tiffany and Katie were talking and smoking a cigarette with the car doors closed and windows open. Tiffany heard Katie say, “O my god, he’s got a gun”, which made Tiffany look through the front windshield of the car.

She saw a man walking briskly from the direction of Second Ave to the east, towards the 202 entrance. He had a gun in his left hand and, as she watched him, he moved it to his right hand and put it down to his side. She testified it looked like a hand pistol. After he passed in front of Katie’s vehicle, Tiffany could no longer see him because an SUV or truck on her left (west) side blocked her view. [ 88 ] She described the man with the gun as dark-skinned, possibly African-Canadian, stocky, not super-tall, and looked strong.

She believed he was wearing a dark hoody -dark grey or blue colour- and darker jeans, but she was not sure. She said he was walking pretty fast. [ 89 ] She and Katie shared a joke about bringing a knife to a gunfight. A minute or two later, she heard two gunshots and the sound of breaking glass and screaming. Possibly, she said, there was a third shot.

[ 90 ] She saw the same man she had just seen carrying a gun running back in front of the car, now heading towards Second Ave. She described him as maybe hobbling on one leg or running as fast as he could, not smoothly. She had not noticed this gait before. However, she confirmed her certainty that it was the same man she had seen walking from Second Avenue a few minutes earlier. She saw a bouncer, whom she knew as Donnie, running after the man. She saw the man turn the corner of the 202 building towards the off-sales and then lost sight of him. After Donnie ran past, she got out of the car.

She did not see the man standing at the corner of the 202 building pointing the gun towards the 202 door. [ 91 ] Tiffany Law was a credible witness. She was straightforward in her testimony. Her sense of timing was not reliable, as she admitted when testifying, “when you’re scared everything seems longer”. She did not know any of the other witnesses except Katie Gallagher. I accept her evidence, with appropriate caution around her evidence about times. Katherine (Katie) Gallagher [ 92 ] Katie Gallagher drove to the 202 bar with her friend Hannah in the early morning hours of December 1, 2019.

She parked her beige Chevy Cobalt car to the east of and facing the 202 entrance, the second car in from the east end of the parked cars, confirmed by the photo taken on December 1 and entered into evidence. [ 93 ] After Hannah went into the 202, Katie’s friend Tiffany Law came to her car to smoke a cigarette with her. Katie Gallagher stayed in the driver’s seat and Tiffany was behind her. They smoked and talked for five or 10 minutes. She said it was dark outside, with brightness coming from the door and windows in front of her, making it hard to see.

During that time, she saw a man on the sidewalk walking in front of her car from Second Ave towards the 202 entrance. [ 94 ] In direct examination, Katie Gallagher said it was Tiffany Law who said, “he’s got a gun”. In cross-examination at trial, after reviewing her police statement, where she said she told Tiffany “he’s got a gun”, Katie Gallagher said, “perhaps it was me who said it.” [ 95 ] She described the man as dark-skinned, wearing a work jacket that was tan or mustard colour. She was unsure if he had a hood on his jacket. He was taller than her height of 5’6”.

She testified he had an angry, determined, tense look on his face. [ 96 ] She saw him pull a gun from his pocket/hip area, raise it to his shoulder, and shoot. In cross-examination, she adopted her police statement that the shot came approximately five seconds after the man took the gun out, not immediately after he raised the gun. [ 97 ] In direct examination at trial, she said the gun was in his right hand. In cross examination, initially, she said she could not recall in which hand he held the gun, but later said that, after she had thought about it, it was the right hand.

She described the gun as a handgun, dark metal, not shiny, like a .45 in the movies. [ 98 ] She said she heard one shot but was not able to see anything. She saw the man run away towards Third Avenue after the shot. She said everything was chaotic after that, with someone on the ground and people crying. [ 99 ] Her videoed statement to Corporal Jill McLaren, taken December 1, 2019, around 4 a.m., was played at trial. It was admitted for the purpose of assessing credibility and reliability of her testimony at trial.

In that statement, she identified the shooter as CJ/Craig, someone she knew because she had brought crack from him before. She described him as Somalian, approximately six feet tall, late 30s, without a lot of hair. She said she could see his face - his eyes, cheekbones, nose, and mouth. [ 100 ] She then testified at trial that she was mistaken: it was not CJ (Craig). Even though she told police on December 1, 2019, that she was sober, she said at trial that she had meant she had not been drinking alcohol.

In fact, she said that, at the time on December 1, 2019, she was high on cocaine and weed, was “not in her body”, and her statement was an expression of her fears, and was “all very embarrassing”. [ 101 ] She said at trial she could not remember doing the interview with police. She said she was coming down from using cocaine that night and was distraught, unable to think, and stressed. She testified at trial that she does not believe CJ/ Craig was the shooter, even though she acknowledged that she believed strongly at the time it was CJ/ Craig.

When asked why she did not think now it was CJ/Craig, she said she did not know. She disputed defence counsel’s suggestion that she was changing her evidence about the identity of the individual because she was afraid for her safety and of retribution. [ 102 ] Corporal Jill McClaren testified she had not met Katie Gallagher before that night and did not recall if she showed signs of impairment by alcohol. She said that she would not have continued the interview if she felt the witness were incapable of providing the information requested.

Corporal McClaren said that she did not believe Katie Gallagher showed signs and symptoms of cocaine intoxication, such as super-human strength and bizarre behaviour. [ 103 ] From my observation of Katie Gallagher’s video-taped interview with police, she did appear anxious, fearful, and reluctant to provide certain information. She appeared high-strung and upset. This was different from her demeanour in court, which was relatively calm and measured, although uncertain.

I cannot exclude the possibility that she was suffering from some kind of impairment or after- effects of drug ingestion on the night of December 1, 2019. [ 104 ] However, there were credibility and reliability issues with this witness’ evidence at trial. She was unsure, suggestible, and her memory was not strong. She identified the man with the gun she saw that night as one person during the police statement, then withdrew that identification at trial and did an in-dock identification of Malakal Tuel. She referred to her intoxication on December 1, 2019.

And although she did not demonstrate those classic symptoms during the police interview, she did appear very anxious, scared, and tense. She flipped back and forth on details at trial, such as in which hand the man held the gun and whether Tiffany or she said first, “he’s got a gun”. [ 105 ] The contradictions between her testimony at trial and her testimony to police, and between her direct examination evidence and cross-examination evidence, as well as her general uncertainty in providing evidence makes her evidence unreliable and raises credibility issues. I do not place weight on her evidence.

Donny Tutin [ 106 ] Donny Tutin was one of the doormen, also referred to as a bouncer, at the 202 bar on the night of the shooting. He confirmed from checking his cell phone clock regularly at the 202 that the time on the 202 video surveillance is accurate within three to five minutes. [ 107 ] Donny Tutin was in the 202 bar lobby, near or at the front door, just before the shooting. The video surveillance evidence shows him standing near the front window and then suddenly turning his head to look outside at 1:56:38 a.m. He said he heard a loud pop at that time and then heard a co-worker, Barry Lee, say “gunshot”.

He motioned people to get outside and his instinct was to find his boss, John Singh, to let him know. [ 108 ] Donny is seen on video leaving the 202 bar at 1:56:46 a.m. He testified he saw JT Papequash on the ground, moving around, trying to get up. He said he thought he saw him stand up at one point. He saw Barry Lee running and he started running behind him, towards Second Avenue, in support. At the off-sales, he turned around and came back to the 202 entrance. He wondered to himself what he was doing chasing after someone who may have a gun and he also knew he could not keep up to Barry.

He did not see anyone with a gun. [ 109 ] Donny Tutin’s evidence was not particularly relevant except to confirm the timing of the gunshot and to contribute to the evidence leading to an inference about the direction the shooter fled. He went outside the 202 bar eight seconds after the shot, and it is not clear how long it took before he started running towards Second Avenue. [ 110 ] I reject his evidence that he saw JT Papequash standing up after he was shot. This contradicts every other witness’ evidence that JT Papequash was on the ground after the shot and did not stand up.

John Singh [ 111 ] From the video evidence, John Singh, whose self-described nickname is “Brownie,” was speaking with JT Papequash at the 202 front lobby around 1:55:07 a.m. He testified he was telling JT Papequash that he could call a cab for him and he could leave out the back. He said he was concerned for JT Papequash because of the altercations earlier that evening, his knowledge that JT Papequash does not back down from people, and his fear that he would make bad choices.

He had observed earlier in the evening that the women who arrived with JT Papequash were moving back and forth between that group and the two African men. [ 112 ] JT Papequash left the bar out the front door. [ 113 ] John Singh ran out the front door at 1:56:45 a.m., around the same time as Donny Tutin. He testified he saw JT Papequash on the ground and he saw Donny run to the left. John Singh said he saw both men at the corner by the 202 building, with Joseph Wuor being at the corner and Malakal Tuel halfway there.

He said he heard two shots: one at the 202 entrance; and one around the corner where the two men went. [ 114 ] As noted above, I have some difficulty with the credibility and reliability of John Singh’s evidence that is not supported by video surveillance evidence.

Along with the example already noted, his evidence about seeing Joseph Wuor at the corner of the 202 building six seconds after the shot is contradicted by the dashcam video from the taxi which shows Joseph Wuor running in the opposite direction three seconds after the shot. [ 115 ] I do not place much weight on John Singh’s evidence beyond the video evidence, as a result. The Six Friends [ 116 ] The six friends left the 202 at 1:51:21 a.m.

Their testimony was consistent in the following points: • Immediately on leaving the 202 bar, they turned west towards Third Avenue together because Alberto Giminez’s bicycle was locked to a structure directly in front of Lahcen Amzoug’s taxi cab. • They stood around the bicycle for a few minutes discussing which way they were going to walk home, as they all lived in Riverdale, and whether to get something to eat. • They decided to walk to Riverdale along the river, so they turned east and started to walk towards Second Avenue and the river along the sidewalk beside the 202.

All of them passed the 202 entrance at 1:56:14 a.m. • All of them heard a loud bang they recognized as a gunshot as they were walking towards Second Avenue. They were in various places along the route: some had crossed Jarvis Street already, some were about to enter the cross walk, and some were further west along Jarvis Street, closer to the 202 building. • All of them had passed the entrance of the 202 when they heard the shot. • All of them looked back towards the 202 entrance after they heard the loud bang. • All of them heard one shot. • No one saw anyone fire a gun. • No one saw the shooting.

[ 117 ] The following sets out the testimony of each of the friends and my assessment of their credibility and reliability. Lea Imbeau [ 118 ] When Lea Imbeau walked past the 202 entrance, she saw people out in front but does not remember seeing anyone she recognized from inside the bar. [ 119 ] She heard the shot after she had stepped off the curb at the corner of Jarvis and Second Avenue. She thought it was fireworks and realized it was a gunshot when people began running towards her from the 202 entrance.

She ran south across Jarvis Street towards the courthouse, away from the 202, noticed that not all of her friends were there, so ran back towards the liquor store (identified as the off-sales on the east facing side of the 202 building). Camille, Kamille, and Alberto were not there. She saw movement around the back corner of the 202 building, so she ran in that direction. It might have been a silhouette in the parking lot. After she took a few steps behind the building, she felt uneasy and could not see anyone clearly and realized her friends were not there.

She then ran back to the 202 entrance and saw one of her friends with the shooting victim, whom she recognized from inside the bar. She did not see the shot or anyone with a gun. She did not see the accused outside the bar at any point. [ 120 ] Lea Imbeau’s testimony is credible and reliable. It provides some evidence about what was occurring at the 202 before the shooting. It is not surprising, given this account, that she did not see anyone as the others did because she was crossing the street and running away from the 202 building when she heard the shot.

Josiane Lavoie [ 121 ] When she and her friends passed the 202 entrance after Alberto retrieved his bicycle, she saw a black male and a non-white, possibly Indigenous male approximately a metre or two from the 202 entrance. They were talking to each other. She said the possibly Indigenous male was the shooting victim she saw later that night. She had seen both men in the bar earlier that night. [ 122 ] After she walked past the 202 entrance, she heard a pop, like a cap gun.

She was on the sidewalk beside Lea, not very far past the 202 entrance, and when she looked back towards the 202 entrance, she saw someone lying on the ground. [ 123 ] At trial, she testified she felt someone running beside her on her left and described him as the shorter man she had seen in the bar and talking to the shooting victim at the door. This testimony contradicted her police statement where she did not say a man ran past her. [ 124 ] In the police statement, she drew a diagram showing her location as across Jarvis Street almost at the courthouse, not further up on the 202 side of the street.

At trial, she explained the difference in terms of timing. The police statement diagram she said showed her location after the man ran away, not her location just after the shooting. [ 125 ] Her description at trial of her position at the time of the gunshot was different than Lea Imbeau’s testimony, who said she was at the corner with Josiane about to cross the street. [ 126 ] Josiane Lavoie described the man she saw as a black man with no head covering and a bald or shaved head. She was not sure what he was wearing- possibly beige pants and a light brown colour jacket.

She said her friends told her he had a grey hoody. She said the taller black man she saw inside the 202 bar was wearing a puffy jacket. [ 127 ] The man she saw stopped at the corner of the 202 building a couple of metres away from her. He had a gun small enough to fit in one hand. It had a grey part and its grip was small. He made a motion that looked like recharging or reloading by putting his hand on top of the gun and moving it backwards and forwards. He pointed it towards the 202 entrance but did not fire. He then ran away towards the off-sales at the back of the 202 building.

She noticed Lea Imbeau running in the same direction as the man and then turning around to come back. [ 128 ] She described the lighting outside as quite bright because the streetlights were on. [ 129 ] Josiane Lavoie had consumed no alcohol or drugs that night. She explained the difference in her location on the street between her evidence at trial and her police statement satisfactorily.

In her police statement, she referenced her position across Jarvis Street by the courthouse as, “I was right here when I didn’t see him anymore”, meaning when he ran away in the direction of the off-sales. [ 130 ] The fact that she did not tell the police officer that a man ran by her is surprising. She admitted on cross-examination that she and her friends discussed what happened in the 202 while they were waiting to provide police statements. She said she and her friends had talked about the case about a dozen times over the last two and a half years. She did not provide any detail about what they discussed.

However, she differentiated in her evidence about what her friends had told her – that is, the man was wearing a grey hoody- and her own recollection that he was wearing beige pants and light brown jacket. [ 131 ] Her testimony was credible. There is some question about the reliability of her testimony, as a result of her failure to tell the police officer than a man ran past her. I do not accept that a man ran past her, as this is something that she would have told police that night if it had happened. However, aside from this, I found she was a reliable witness.

The difference between her description of the location of her position and Lea Imbeau’s description of their position is not so material that it undermines the reliability of her evidence. The distance between those two positions is not far, as evidenced in the photos of the area entered as exhibits at trial. I accept that even if she were at the location that Lea described, she would have been able to see what she described. Alberto Giminez [ 132 ] When he and his friends left the 202, they went to get his bike and they finished a bottle of gin they had stashed earlier in the evening.

They began walking towards Second Avenue. He does not remember if there were any people outside the bar when he passed.

[ 133 ] He was at the corner of Second Avenue on the sidewalk and was about to cross Jarvis Street when he heard a loud bang. He kept walking because he did not realize it was a gunshot. After two or three seconds, he turned around and saw a man on the ground and another man at the corner of the 202 building holding a gun and pointing it at the 202 bar entrance.

The man did not fire the gun and he ran away along the side of the 202 building with two or three guys running after him. [ 134 ] He said the lighting was good. [ 135 ] Alberto Giminez described the gun as a small semi-automatic black handgun, with a horizontal silver stripe running the full length. It was not a revolver. [ 136 ] He could see the side of the man’s face and he thought it was one of the two black men he had seen earlier in the bar, possibly the taller one, but he could not be sure. He testified at trial it could have been the shorter man.

He also said in cross-examination it could have been a completely different man than who he saw in the bar. [ 137 ] His evidence was credible. He was forthright and honest about what he could and could not remember. He said he was at a 2 to 3 sobriety level out of 10, as he had approximately three drinks over the course of the evening. His evidence was reliable. Kamille Lemay [ 138 ] Kamille Lemay remembered seeing two men inside the 202, one shorter and stockier, and one taller and skinnier, and both with black-coloured skin and short hair.

She remembered them because of observing their interactions with the woman in the pink sweater. She could not remember what they were wearing. [ 139 ] When Kamille Lemay and her friends left the 202 bar, she said she felt weird tensions among the people in the bar and she did not like the vibe. They turned right first, where one of her friends smoked a cigarette. This is evident on the video. [ 140 ] When they walked towards Second Avenue past the 202 entrance, she saw the shorter black man whom she had seen inside the 202, outside the door.

He was talking face to face to the guy who got shot, whom she did not recognize at that time, from inside the bar. She was in “alert mode” because of the energy inside the bar. She heard the guy who got shot say something like “I know who you are” to the shorter black man. The tone was not agitated. She did not see the taller black man. [ 141 ] She was past the corner of the 202 building, almost at the corner of Jarvis Street and Second Avenue when she heard a big bang, like a car backfiring. She turned back towards the 202 and saw a man with a gun running towards her, about two metres away.

The gun was a darker coloured handgun. It looked like the same man who was in the 202 bar talking to the woman in the pink sweater and who she had just seen talking to the victim outside the entrance. The man got to the corner of the 202 building and looked right at her but she does not know if they made eye contact. He then pointed the gun back towards the 202 entrance, holding it with two hands for about a second. He did not fire the gun. She thought he did a movement like recharging it from the top with both hands (she made the motion of pulling back the slide on a semi-automatic pistol).

She knows she told the police this in her statement but at trial she said she had a hard time remembering if she had seen that movement. [ 142 ] She saw Lea Imbeau running toward the end of the 202 building. She also saw a bouncer running after the man with the gun. She does not know where the man with the gun went after this. [ 143 ] She said it was dark but the streetlights were on. [ 144 ] In cross-examination, she said the shorter black man was wearing a grey zipped up sweater, like a sweatshirt or hoody. She also agreed that she said at the preliminary inquiry he was wearing a black toque.

She thought the shorter man was around six feet. She agreed that she said at the preliminary inquiry that she would not recognize either man if she saw either of them again. [ 145 ] She provided an in-dock identification of Malakal Tuel, which I will disregard because of the inherent difficulties of in-dock identification. As well, she admitted at the preliminary inquiry she would be unlikely to recognize the two black men again, and in cross- examination she could not identify Malakal Tuel on the 202 video surveillance excerpt. [ 146 ] Kamille Lemay’s evidence was credible.

She admitted where there were discrepancies between her trial testimony and earlier testimony. She admitted her identification challenges. She testified she had one drink at the 202 bar and on the sobriety scale was 1 to 2 out of 10. [ 147 ] Counsel for Malakal Tuel urged the reliability of all her evidence be treated with caution, suggesting that she has been influenced by her friends. The Crown agrees that little weight should be placed on the reliability of her identification evidence at the scene as well as in the courtroom. I agree that little weight will be given to her identification evidence at the scene.

However, aside from this, I find her evidence to be reliable. Camille Gendron-Rossignol [ 148 ] When she and her friends walked towards Second Avenue after leaving the 202 that night, she saw a group of people talking in front of the 202 entrance. Just before she reached the corner of the 202 building, she heard a loud noise that she thought was a gunshot, but she was not sure. She saw a man punch a glass door. [ 149 ] Kamille Lemay was almost beside her.

Camille Gendron-Rossignol turned back toward the 202 and saw someone lying on the ground and heard a girl screaming and crying on top of the body. [ 150 ] She noticed a person coming towards her from the direction of the 202 entrance, holding a gun in his right hand. He was approximately three metres away. They made eye contact briefly and then she went to hide behind a black car. She believes the man went around the corner of the building. When she looked back from behind the car, he was gone and she returned to the sidewalk and

went with two of her other friends to help the victim. [ 151 ] She did not recognize the man with the gun. She did not know what ethnicity he was but he was a person of colour, not Caucasian. He had a round face, short hair, possibly some kind of beard, and was approximately 5’5”. She did not pay attention to his clothing but thought he might have been wearing a pale long-sleeved shirt. [ 152 ] She described the gun as small, black, round not square, and it fit in his hand.

When shown a photo of a revolver, she agreed that it looked similar. [ 153 ] She said the lighting was good, but not good enough to see a person’s eye colour. [ 154 ] She had approximately two drinks earlier that night and none at the 202 bar. [ 155 ] She was a credible witness and her evidence was reliable. Jaaved Singh [ 156 ] Jaaved Singh testified about interactions in the 202 bar earlier that evening with JT Papequash and one of his friends, both of whom he had never met.

They asked Jaaved Singh if he had any drugs for sale twice: once when he was going to his table on arrival at the 202 and the second time in the washroom. They asked if he had “blow”, which he understood to mean cocaine. He told them twice he did not have any drugs and testified that he was not selling drugs in November 2019 or on the night in question.

He said JT Papequash and his friend were quite aggressive and he felt threatened by them. [ 157 ] Jaaved Singh testified that as he was passing by the 202 entrance after they retrieved Alberto Giminez’s bicycle, he noticed the shooting victim, whom he recognized from their interactions earlier that night in the bar. He described him as wearing a sport jacket in blue and white, in intense conversation with a black man who was wearing a beige puffy weather-resistant jacket. He seemed to be a stockier build, although it was hard to tell because of the jacket. He was shorter than the man he was talking to.

There was not much of a distance between them and the whole area around them seemed tense. It made Jaaved Singh feel uncomfortable; he did not want to be around them. He did not see a taller black man. In cross-examination, he agreed that he told police he observed them talking like drunk people at a bar. [ 158 ] Jaaved Singh testified that he had seen the shorter black man in the bar earlier multiple times, mostly around the pool tables and the area around the ramp. He was with another black man who was taller and skinnier. He had no interactions with these men in the bar that night.

He described the shorter black man inside the 202 bar as wearing a beige sweater. On re-examination, he said it could have been a beige sweater or a jacket- the material was reflective or weather resistant. [ 159 ] As he continued walking along the sidewalk past the 202 entrance, he heard a loud bang. He was about halfway between the 202 entrance and Second Avenue on the sidewalk. He saw the victim on the ground and he saw the man who had been talking with the victim outside the 202 running towards Third Avenue. He crossed Jarvis Street to the courthouse and called 911. His back was to the scene at the 202.

He stayed there until the police came and then left the area. [ 160 ] He did not see anyone with a gun. [ 161 ] Jaaved Singh was a credible witness. He admitted when he did not know the answers to questions or when he was uncertain. He had more to drink than the others. He testified he had two to three rum and cokes before getting to the 202. At the 202, he had a few more rum and cokes and was a little bit buzzed. [ 162 ] He had his back to the 202 shortly after the shot because he was crossing the street south towards the courthouse and then calling 911.

His testimony is consistent with seeing Joseph Wuor running toward Third Avenue immediately after the shot and then him (Jaaved) turning to cross the street to make the call, which explains why he did not see what the others saw at the corner of the 202 building. Events after the shooting Chevrolet Cruze [ 163 ] The admissions of fact filed at trial contain a number of facts about a Chevrolet Cruze found by police at 5 a.m. on December 1, 2019, abandoned on the Robert Service Way. It was registered to Malakal Tuel.

The doors were locked, the front tire was flat with a damaged rim, and there were footprints in the snow by the driver’s side. [ 164 ] At the traffic circle at the south end of Fourth Avenue, not far from where the Cruze was abandoned, there were tire marks on the sidewalk, leading to a small bank of snow and a broken tree, and then down onto the sidewalk again, passing a pole at close proximity. [ 165 ] The Crown theorizes from this that Malakal Tuel and Joseph Wuor used the Cruze to flee downtown frantically after the shooting.

The Cruze became undriveable, they abandoned it, and began walking the trails on foot until Harold Demarais picked them up. [ 166 ] I am unable to draw these inferences from the evidence at trial. There is nothing that links the two men to the Cruze that night. While some of its contents and the registration links the Cruze to Malakal Tuel, anything more is pure speculation. [ 167 ] I do not rely on the evidence related to the Cruze in my findings of facts or drawing of inferences in the matters to be considered in counts 6 to 10.

Harold Demarais [ 168 ] Harold Demarais identified Malakal Tuel, known to him as Sonny, as someone he had known for eight months or so, possibly

longer. They met through carpentry work. Harold Demarais saw Sonny working near the High Country Inn and asked if he could get work. Sonny and he used to hang out and drink together — approximately 10 to 15 times — and sometimes Sonny would crash at his apartment on Jarvis Street downtown. [ 169 ] The night of the shooting, Harold Demarais was drinking and gaming with a neighbour. He finished a 6-pack of beer during the evening. He saw the police cars outside the 202. He thought it was around 11:30 p.m.

Approximately one and a half to two hours after he noticed the police cars, Harold Demarais said he phoned Sonny because he wanted to “hang out”. Sonny told him he was walking and drinking so he needed a ride. Harold Demarais met him and a taller black man, whom he did not know, at the bottom of the clay cliffs at the Black Street stairs. He said he did not know if they had a vehicle but they were on the trail when he picked them up. He laughed because they were in relatively deep snow in running shoes. He thought Sonny was wearing a winter coat. [ 170 ] Sonny asked Harold Demarais to drive them to the airport.

Sonny directed him on a circuitous route through town. Harold Demarais said he could still see police lights on Jarvis Street. [ 171 ] At the airport parking lot, Sonny got out of the car and went for a walk. He returned to the car and then went for a walk again. His friend stayed in the car. Sonny asked Harold Demarais to drive around the airport twice, which he did, and did not know why Sonny asked him to do this. He was becoming annoyed because he was burning up gas and he thought it looked suspicious to be driving around the airport in circles.

Sonny asked him to go around one more time and Harold Demarais then said he wanted to go home as he did not have much gas. They left the airport and travelled downtown via the south access/Robert Service Way. Harold Demarais dropped the men off at their vehicle parked in Rotary Park. He said this was a white or grey pick-up Dodge truck with a canopy. He had seen Sonny in it before. [ 172 ] Harold Demarais described Sonny and his friend as not drunk when he picked them up, although Sonny had sounded drunk when Harold had spoken to him earlier on the phone.

They were talking excitedly in their language but this was not unusual. [ 173 ] Harold Demarais said one of the times Sonny had come to his apartment on Jarvis Street, before December 1, 2019, he had asked Harold if he could leave a bag there. Harold agreed and when Sonny left, Harold opened the bag and found a silver handgun. He looked at it, pulled back the slide, saw it was not loaded, put the clip in so it was loaded, then unloaded it and put it back in the bag. He said in cross-examination he did this because he was curious. He thought the gun was made to kill people.

He asked Sonny not to bring it into his house anymore, and Sonny respected his wishes. [ 174 ] Harold Demarais’ testimony was at times difficult to follow as he talked continuously and was not always focussed or answering questions directly. His initial police statement about the events that night was not provided until October 2020. He said he had drunk a 6- pack of beer over the course of the evening and was not impaired at the time he went to pick up the men. His assessment that the police cars arrived at the 202 that night at 11:30 p.m. was not correct. His evidence on times therefore was not reliable.

He was also mistaken about the make of the Malakal Tuel’s vehicle. It is clear from the Casa Loma video and the photographs of Lorraine Young and the arrest that the vehicle was a Toyota Tacoma. He was, however, otherwise consistent in his testimony and honest when he was unsure of details. But for the exceptions noted, I accept his evidence as reliable. Julie Boily [ 175 ] Julie Boily lived at 3036 South Klondike Highway, near Caribou Crossing, with her family.

This is the address at which Malakal Tuel and Joseph Wuor were arrested at approximately 6:10 p.m. on December 1, 2019. [ 176 ] Julie Boily has a rental unit on her property, adjacent to and connected to her house. She rented it to Sonny, who messaged her on Facebook, beginning August 1, 2019. He paid his rent of $900/month on time every month by e-Transfer through the name of Chudier Alfa. He did not sign the one-year lease until November 2019. He signed it Malakal Tuel. [ 177 ] She described him as a black, muscular man with square shoulders. He had a grey or silver Toyota Tacoma truck.

She saw him only five or six times while he was renting from her because of their busy schedules and the first month he went back to Edmonton. He told her he was doing carpentry work and starting his own business. She said he was always very pleasant, nice, and clean. [ 178 ] At approximately 5:15 a.m. on December 1, 2019, Julie Boily was wakened by a knock on her door and the dog barking. Sonny was there asking for the spare key to his apartment. She testified his demeanour was calm. She gave him the spare key and returned to the couch where she was sleeping.

She heard him talking to at least one other man and possibly two through the thin door that separated the room in the house, where she was sleeping on the couch, and the apartment. No one else lived in the apartment except Sonny. She did not see him again on December 1, 2019. His Toyota Tacoma was in the driveway at the house on that day. [ 179 ] Julie Boily was a credible witness and her testimony was reliable. The Arrest [ 180 ] The police received a tip in the early afternoon of December 1, 2019, that Malakal Tuel may be at 3036 South Klondike Highway.

When the police arrived at that location, they noted a silver Toyota Tacoma with a canopy, licence HZV11, parked in front of the duplex and registered to Malakal Tuel. The officers observed Malakal Tuel and Joseph Wuor going back and forth several times between the Tacoma and Malakal Tuel’s apartment between 5:24 p.m. and 6:10 p.m. The two men were loading the Tacoma’s box and cabin with various items and garbage bags, including a mattress and bedding. The Tacoma was running and they got inside the truck at approximately 6:10 p.m.

Malakal Tuel was in the driver’s seat and Joseph Wuor was in the front passenger seat. There was no one else in the vehicle. After about two minutes, the Tacoma started moving south down the driveway towards the Klondike Highway.

[ 181 ] The police officers activated their emergency lights and drove into the driveway to apprehend the Tacoma. A second police vehicle came up behind the Tacoma and rear-ended it, bringing it to a stop. Malakal Tuel and Joseph Wuor were taken into custody. The residence where Malakal Tuel was staying was secured by police until it was later searched by police. [ 182 ] Both men were arrested and searched incidental to arrest. No weapons or drugs were found on either man.

Securing the Scene After Arrest [ 183 ] Two police officers, Constable Geremy Newbury and Corporal Martin Fry, secured the scene after Malakal Tuel and Joseph Wuor were taken into custody. They drove their police vehicle into the driveway and parked nose to nose with the Toyota Tacoma. All four doors were open and its headlights were on. [ 184 ] The police officers could not see, because of the headlights from the Tacoma, so Constable Newbury went to the truck to turn them off. He used his flashlight to locate the switch for the headlights on the driver’s side.

While doing so, he leaned in on the driver’s side and shone his flashlight on the passenger side of the truck. He saw a portion of a firearm on the floorboards of the passenger side – approximately a half inch of the slide. He then walked around to the passenger side of the truck and could see the gun from where he was standing outside the vehicle. He did not touch or adjust anything in the vehicle. [ 185 ] Corporal Fry also went to the vehicle at the same time as Constable Newbury.

He went to the passenger side and observed the firearm on the floor of the passenger side after Constable Newbury told him to look there. He did not touch or adjust anything in the vehicle. Corporal Fry advised the sergeant on duty of the existence and location of the gun.

They continued to maintain security until other police officers arrived. [ 186 ] On December 2, 2019, Sergeant Ian Fraser, a 26-year veteran of the RCMP and a firearms instructor, attended at 3036 South Klondike Highway to assist in making the firearm found in the vehicle safe for transport, at the request of the forensic identification services officer and the exhibits officer, Corporal Philpott and Corporal McLaren (as she then was). He described it as a black semi- automatic handgun. There was no ammunition in the chamber when he opened the slide.

He removed the magazine, which had live, unfired ammunition in it. He provided the gun and magazine to Corporal Philpott, who secured it in an evidence box and then gave it back to him for transport. Securing the Scene at the 202 [ 187 ] Corporal Shannon Stelter of the RCMP was one of the first officers to arrive at the 202 after the 911 call was received at 1:57 a.m. on December 1, 2019. The victim was lying on the ground in front of the 202 entrance. EMS had not yet arrived and, as a result, he called them several times as he could see the victim he was alive.

There were many people at the scene trying to help. [ 188 ] Another police officer, Constable Lenssen, used his police jacket to make JT Papequash more comfortable. When the ambulance came, Constable Lenssen went with JT Papequash and left his jacket at the scene. There was a pool of blood on the ground with the jacket. Once JT Papequash got medical attention, Corporal Stelter’s focus was to contain the scene, get people back into the bar and collect names of witnesses, tape the area, and keep vehicles out of the area.

He made calls to his supervisor and to request other police resources, including forensic identification services. [ 189 ] Corporal Stelter returned to the area where JT Papequash had been lying to look for anything of interest. He saw a bullet casing on the ground near the area of the blood and advised his supervisor by phone at 2:55 a.m. He could not say how long the casing had been on the scene before he noticed it. He monitored it from the 202 entrance and tried to keep people from going in and out that door, not always successfully.

His intention was to leave it where he found it to allow the identification officers to process it. He did not believe he touched it and he did not see anyone else touch it. He did not know if the tape was already up at the time he noticed it or whether they were in the process of doing that. He noticed at one point that the wind blew and the casing rolled slightly. [ 190 ] The role of the forensic identification unit officers

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