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EVIDENCE - Methods of proof - Inferences - From conduct

Thursday, November 15, 2018 @ 10:32 AM  


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Appeal by two accused, MW and TF, from their convictions for first degree murder. The appellants were 16-years-old at the time of the offence. The 16-year-old victim was shot and killed, execution style, in the stairwell of a residential complex. The trial judge found SB was the shooter and TF was with him. MW, who had been in cellphone communication with SB and TF before the shooting, was on his way to the complex when the shooting occurred. Text messages between the accused revealed a plan to connect TF and SB to enable SB to gain access to the complex and to contain the victim in the stairway. Just prior to the shooting, MW texted that he was on his way with his “girlfriend”, which the trial judge accepted was slang for gun. In text messages after the killing, TF indicated he was leaving town because of the murder. In another text, he asked his mother to dispose of something. MW texted someone suggesting they spread a rumor that other people committed the killing. The trial judge found the killing was planned and deliberate. He found the appellants liable as joint principals. He found the absence of any surprise, horror or disbelief in the appellants’ post-offence communications removed any doubt that the purpose of the parties’ plan was to kill the victim.

HELD: Appeal dismissed. The trial judge was entitled to infer that the appellants participated in a plan to murder the victim based on their post-offence conduct. The post-offence conduct was relevant to the issue of participation. The appellants’ post-offence conduct was inconsistent with a spontaneous unplanned killing and consistent with a planned murder. The trial judge did not commit a so-called “Villaroman” error in dismissing other inferences as speculative. He did not reverse or misapply the burden of proof. He had not misapprehended the evidence. He did not make inappropriate use of ante-mortem hearsay evidence.

R. v. S.B., [2018] O.J. No. 5186, Ontario Court of Appeal, G.R. Strathy C.J.O., R.G. Juriansz and L.B. Roberts JJ.A., October 10, 2018. Digest No. TLD-November122018007