WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access
    to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
    section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
    subsequent disclosure by school) or (1.15) (information to be kept separate),
    45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
    1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable
    on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.B.1, 2018 ONCA 807

DATE: 20181010

DOCKET: C59241 & C59382

Strathy C.J.O., Juriansz and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.B.1,
T.F.
,
M.W.
and S.B.2

Appellants

Peter Copeland, for the appellant T.F.

Erika Chozik, for the appellant M.W.

Christopher Webb, Lorna Bolton and Brock Jones, for the
    respondent

Heard: May 23-24, 2018

On appeal from the convictions entered by Justice Ian
    V.B. Nordheimer of the Superior Court of Justice on May 29, 2013, sitting
    without a jury, with reasons reported at 2013 ONSC 3139.

Strathy C.J.O.:

[1]

These
    reasons explain why I would dismiss the appeal.

[2]

The
    dispositive issue is whether the trial judge was entitled to infer that the
    appellants participated in a plan to murder Tyrone Bracken based on their
    post-offence conduct. In my view, he was. There was ample evidence that the
    appellants participated in a plan to do
something
to Tyrone. Aspects of their post-offence conduct, when considered together with
    the totality of the evidence, supported an inference that the plan was murder.
    The trial judge did not commit a so-called
Villaroman
error in dismissing
    other inferences as speculative.

Introduction

[3]

Sixteen
    year-old Tyrone Bracken was shot and killed at approximately 3:37 p.m. on
    November 17, 2010, in the stairwell of a residential complex in Toronto.

[4]

Tyrone
    was killed by a single bullet. It entered his skull behind his right ear and
    lodged in his left temple. That wound was immediately fatal. A second bullet
    grazed his right cheek and nose before coming to rest in the wall of the
    staircase. Based on expert evidence and the presence of gunshot residue near
    the facial wound, the judge found that the fatal shot was fired from behind, mere
    inches from Tyrones head.

[5]

In
    simple terms, as the trial judge put it, Tyrone was executed. The central
    issues at trial were the identity of the participants and their degree of
    culpability.

[6]

MW
    and TF, both 16 years old at the time, were charged with first degree murder,
    together with SHB, who was also 16, and SB, age 17.
[1]

[7]

Following
    a 25-day judge-alone trial, SB, MW, and TF were convicted of first degree
    murder. SHB was acquitted.

[8]

The
    trial judge found that SB was the shooter. That finding was not disputed on
    this appeal.

[9]

The
    trial judge also found, and it is beyond dispute, that TF and SHB were in the
    stairwell with SB and Tyrone at the time of the shooting.

[10]

MW, who had been in
    cellphone and text message communication with SB and TF before the shooting,
    was on his way to the complex to meet up with them when the shooting occurred.
    He arrived shortly thereafter.

[11]

The Crowns case at
    trial was almost entirely circumstantial. There were no witnesses to the crucial
    events other than the four accused. None of them testified or made any
    statements to police. Most witnesses in the complex were either unwilling or
    unable to assist the police investigation.

[12]

But the appellants and
    SB left an electronic trail behind them, captured and preserved by their cell
    phones, which they used to text and call one another before and after the
    killing. The times and duration of their phone calls were recorded, but the
    calls themselves were not intercepted. Their text messages were preserved. Many
    of the text messages were in slang form. A police witness, qualified as an
    expert in urban slang, assisted in the interpretation of the text messages.
    Some of their movements were recorded by security cameras inside and on the
    exterior of the complex. Painstakingly piecing together and interpreting this
    evidence, police were able to construct a record of their text communications
    and of some of their actions leading up to and after the offence.

[13]

In addition to this
    evidence, there was
viva voce
evidence from some residents of the
    complex, including Tyrones mother and his sister Skyy and TW, the resident of
    an apartment near the staircase where the shooting occurred. Tyrones friend F,
    who was visiting the complex with him on the day of the killing, also
    testified. The trial judge also heard forensic and other expert evidence, some
    of which is discussed below.

[14]

MW and TF appeal their
    convictions for first degree murder. They also appealed their adult sentences
    of life imprisonment with parole ineligibility of ten years. On May 10, 2016, this
    court allowed their sentence appeals, substituting youth sentences of ten years:
    six years in closed custody for MW and four years in closed custody for TF. The
    court also made intensive rehabilitative custody and supervision orders: 2017
    ONCA 22, 134 O.R. (3d) 1, leave to appeal refused, [2017] S.C.C.A. No. 109.

[15]

This appeal is almost
    entirely fact-based. The appellants contend, among other things, that the trial
    judge reversed the burden of proof, failed to consider reasonable alternatives
    inconsistent with guilt and erred in his use and assessment of evidence of
    post-offence context. It is accordingly necessary to review the central features
    of the evidence in some detail.

The Evidence at Trial

[16]

I will summarize the
    most important evidence in relation to the grounds of appeal.

[17]

The Crowns theory was
    that all four accused were involved in a plan to kill Tyrone and participated
    in the execution of that plan. No motive was identified.

[18]

The Crown claimed that
    MW played a coordinating role in furthering the crime by connecting TF with SB
    and, through TF, SHB with SB. TF and SHB were both residents of the complex, SB
    was not. TF gave SB access to the building, lured Tyrone into a stairwell and
    kept him there until he was shot by SB.

(1)

Events prior to the shooting

[19]

The text messages
    exchanged between the parties revealed a plan to connect TF and SB (who did not
    know each other), to enable SB to gain access to the complex, and to contain
    Tyrone in a stairway in the complex. MW, who was in school at the time, was
    planning to join the other two and was in fact on his way at the time of the
    shooting. He told SB he was bringing his girlfriend, a slang word for a gun.

[20]

TF alerted MW that Tyrone
    had arrived at the complex. MW informed SB and connected SB with TF. When SB
    arrived, TF let him into the building. TF complied with SBs request to keep
    Tyrone at the complex and told SB that Tyrone was in a staircase.

[21]

The trial judge found
    that the communications between the parties demonstrated that Tyrone was being
    set up for something.

[22]

TW came home from
    school on the day of the shooting and entered the west stairwell of the
    building at about 3:25 p.m. He lived on the main floor, next to the stairwell.
    When he entered the stairwell, he saw SHB and heard three or four other voices,
    but he could not see who was speaking. He continued through the hallway to his
    apartment and went inside to play video games. TW heard two gunshots, one after
    the other, ten or twenty minutes later. He did not hear any argument or raised
    voices.

(2)

The events after the shooting

Flight from the stairwell

[23]

Video surveillance
    showed SB, TF, and SHB running from the west stairwell at the ground level of the
    building at 3:37 p.m. This pinpoints the time of the shooting. SHB appeared
    first and ran towards his home in another building in the complex. His arms
    swung fully while he ran. Video surveillance from earlier that day showed a
    bulge, which appeared to be of some weight, in the front pocket of his
    sweatshirt. That bulge was not present in the video of events following the
    shooting.

[24]

TF was the second
    person to run out of the stairwell. The video showed TF turning back towards SB,
    whose arms were stretched out towards him, before TF reversed and ran across a
    parking lot toward his building.

[25]

The trial judge found
    that although TF ran at a full sprint, his arms were held tight to his body.
    There was expert evidence that this was consistent with someone concealing a
    firearm.

[26]

SB came out of the
    building last and, after the interaction with TF, ran off in another direction.

Yur dum

[27]

Immediately after the
    shooting, TF called MW at 3:38 p.m. (lasting 11 seconds), and again at 3:39
    p.m. (lasting 100 seconds).

[28]

Shortly after these
    calls, at 3:44 p.m., MW and TF exchanged text messages. The texts will feature centrally
    in the discussion of post-offence conduct. MWs text said: yur dum [You are
    dumb]. To this, TF responded: how [?]. Shortly thereafter, TF texted again: I
    didnt bring him [i.e., SHB] the d [Tyrone] did.

[29]

The reference to him
    was interpreted to be a reference to SHB. That is, in response to MWs text
    Youre dumb [for bringing SHB] TF was replying, I didnt bring SHB, Tyrone
    did.

TF changes his clothes

[30]

MW first appeared on
    video surveillance at 4:11 p.m., when he and TF exited the lobby of one of the
    buildings in the complex. TF was no longer wearing the green and white jacket
    and the ball cap he had been wearing before the shooting, and he had changed
    his shoes from white to black.

Tell no one

[31]

Later in the day, at
    6:48 p.m., SB texted MW, Yo dont tell no one. And shortly thereafter, Send
    out the word the jungle niggas r going off. This was a suggestion that MW
    should put out the word that people from a rival neighbourhood nearby were
    responsible for the shooting. MW responded, Yaya.

TF leaves town  because of M [Murder]

[32]

Shortly after the
    killing, TF left Toronto for Barrie, Ontario. At 6:30 p.m., he sent a text to
    an unidentified person, saying that he had to leave and that they should look
    at the news: Yo famz I need to cut look on the news. When the recipient asked
    what was happening, TF replied, M, which the trial judge accepted meant
    murder. TF added, I need somewhere to chill.

Skyy asks TF why she was hearing he set up Tyrone

[33]

At 8:34 p.m. on the
    day of the shooting, Tyrones sister, Skyy attempted to call TF. TF told Skyy
    that he could not pick up his phone, and to text instead. Skyy then texted him
    at 8:50 p.m. to ask why she was hearing that he set up her brother. TF denied
    having done so, but Skyys text clearly rattled him.

He told Sky[y] and the mom

[34]

Shortly after
    receiving Skyys message, TF sent a text to MW at 8:51 p.m. asking MW to call
    right now. MW called TF at 8:53:17 p.m. (lasting 94 seconds). At 9:01 p.m., TF
    texted MW: He [SHB] told sky aand the mom. TF concluded that SHB had told
    Skyy and Tyrones mother that TF had set up Tyrone.

I should have dropped [killed] him

[35]

Later in the evening
    at 10:17 p.m., SB texted TF, asking what was happening with the next youte,
    referring to SHB. TF answered that he suspected that SHB was snitching: Dwag
    [Dawg] I think he told his sister. And hes sister told sky the d [Tyrones]
    sister.

[36]

SB responded: Yo I
    should of drop him [I should have killed him].

[37]

SB added: Yo tell lo
    [MW] that he [i.e., SHB] has to go by the end of the week.

[38]

To which TF replied:
    Hes not with me [referring to MW].

[39]

To which SB replied:
    Delete everything.

Tyrone asks his mother to dispose of something

[40]

In the early hours of
    November 18, 2010, the day after the shooting, there was an exchange of text
    messages between TF and his mother. TFs mother indicated she had found
    something in her apartment. She says, Ur my son n I love you hope you didn't
    mak da wrong choice in life. TF told her to throw it out of the window and
    that he was sending someone for it. His mother responded, My han on it [my
    hand is on it], to which TF replied, Clean it then throw it out. A few
    minutes later, TF asked, U did it? and his mother responded, I did.

TF fears SB will kill him

[41]

On November 22, 2010, TF
    and MW exchanged text messages in which TF told MW he feared SB wanted to slap
    [him] out [i.e., kill him].

SHB and TF surrender to police

[42]

SHB surrendered to police
    on November 22, 2010. TF surrendered the following day.

SB and MW discuss killing SHB

[43]

On November 23, 2010, SB
    texted MW suggesting that if they had proof that SHB had told the police they
    should kill him, as well as his mother and his sister. MW responded that they
    did not need to wait for proof and he knew that SHB was not being loyal.

SB is arrested

[44]

SB was arrested on
    March 26, 2011, after police executed a search warrant on his apartment.

The absence of surprise, shock, or horror at the killing

[45]

As I will discuss
    shortly, the trial judge found that nowhere in the text communications between MW
    and TF after the shooting was there any indication that they were shocked,
    surprised, or horrified by what they alleged was the unplanned and
    unanticipated shooting of their friend, Tyrone. The absence of any such
    evidence played a pivotal role in the trial judges conclusion that the
    shooting was planned and deliberate.

The Trial Judges Reasons

[46]

In order to appreciate
    the submissions of the parties and my analysis of the issues, I will briefly
    summarize the trial judges reasoning process and will set out a few key
    passages of his reasons.

[47]

As a preamble, it
    bears noting that this court has repeatedly stated that a trial judges reasons
    are not to be read or analyzed as though they were a jury instruction: see
R.
    v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at pp. 524-25. As Doherty
    J.A. said in
Morrissey
, at p. 525: They are not intended to be, and
    should not be read as a verbalization of the entire process engaged in by the
    trial judge in reaching a verdict. See also
R. v. Villaroman
, 2016
    SCC 33, [2016] 1 S.C.R. 1000, at para. 15.

[48]

Moreover, reasons must
    be read as a whole, in the context of the evidence, the issues and the
    arguments at trial, together with an appreciation of the purposes or functions
    for which they are delivered:
R. v. Laboucan
, 2010 SCC 12, [2010] 1
    S.C.R. 397, at para. 16, citing
R. v. R.E.M.
, 2008 SCC 51, [2008] 3
    S.C.R. 3, at para. 16.

[49]

The reasons began with
    an 80-paragraph background section in which the trial judge summarized the
    evidence. He then set out the applicable legal principles, including the
    elements of first degree murder and the requisite
mens rea
. It was
    self-evident, he said, that the person who shot Tyrone in the head either meant
    to kill him or was reckless as to whether he lived or died. Others who
    participated in the planning could be found liable as joint principals or could
    be parties to the offence as aiders and abetters.

[50]

He found the killing
    of Tyrone was planned and deliberate. There was an organized plan, arranged in
    advance, to find him and to kill him. While there was no evidence of motive, it
    was not necessary for the Crown to establish a motive. There was nothing in the
    evidence to suggest that the killing was accidental or impulsive and the
    conduct of the participants after the fact confirmed their participation in a
    planned murder. He set out his conclusions on this issue, at para. 93:

It is clear, beyond any reasonable debate, from the evidence,
    especially the text messages, that there was an organized plan to find Tyrone
    and to kill him. This plan was developed in advance and was then implemented.
    Whatever the reason may have been for wanting Tyrone dead, it is clear that the
    killing was set up in advance of it occurring. The communications that
    occurred, including that Tyrone had arrived at the [complex], where he was
    within that complex, the instruction to keep him in the building and to have
    him in a staircase allow for no other conclusion. While these communications do
    not speak of a murder occurring, they clearly demonstrate that Tyrone is being
    set up for something. Tyrone is then killed.
There is
    simply nothing on the evidence that could sustain a finding that the shooting
    of Tyrone was done on impulse or on the spur of the moment or as the result of
    some unexpected or spontaneous event. Nothing in the evidence points to
    anything like that having occurred. For example, there is no evidence of a
    dispute or fight or other confrontation that could have led to a sudden
    decision to kill Tyrone. One could only reach that conclusion by engaging in
    complete speculation. However, if there was any doubt regarding that
    conclusion, the events subsequent to the murder remove all doubt
.
    [Citing
R. v. MacKinnon
(1999), 132 C.C.C. (3d) 545 (Ont. C.A.), at
    para. 15]. [Emphasis added.]

[51]

The trial judge then
    considered the evidence in relation to each accused to determine whether they
    were a party to the murder. He found that SB was the shooter and was the leader
    of the event both before and after it occurred. The text messages showed that SB
    was informed when Tyrone arrived at the complex, that he gave instructions to
    keep Tyrone there until he arrived, and that he was concerned after the
    shooting about who could identify him. In addition to SBs text message
    indicating that he should have killed SHB, SB had also written a letter giving
    explicit and chilling directions to kill three Crown witnesses who could
    implicate him in Tyrones death.

[52]

The trial judge found
    that MW and TF participated in the killing, either as joint principals or as
    aiders. TF had assisted in the plan to kill Tyrone. He alerted MW, and through
    him SB, that Tyrone had arrived at the complex. He was with Tyrone in the
    hallway and in the stairwell on and off from the time of Tyrones arrival at
    the complex until he was killed. Immediately after the shooting, TF was
    observed watching the events unfold from nearby. In the trial judges view, it
    was of some significance that, by this time, TF was no longer wearing his
    identifiable ball cap and green and white jacket. He had also changed his shoes.

[53]

The trial judge also
    found it significant that TF had travelled to Barrie after the shooting and had
    sent texts saying that he had to cut because of M [murder]. He had obtained
    the assistance of his mother in disposing of a gun, and perhaps bullets. Without
    making explicit findings, the trial judge said it was a compelling inference that
    SB had passed the murder weapon to TF as they exited the stairwell, and that TF
    had his mother dispose of it. He noted, however, that the murder weapon was
    never found.

[54]

The trial judge
    concluded, at para. 120, that the evidence against MW mirror[ed] the evidence
    against TF. MW passed on to SB the information he received from TF that Tyrone
    was at the complex and provided SB with TFs phone number. MW then confirmed SB
    was on his way to the complex and relayed that information to TF. He stayed in
    touch with both SB and TF, keeping abreast of what was happening.

[55]

Though MW was at
    school as events unfolded, he texted SB indicating that he was on his way to
    the complex, and asked SB to confirm what was going on before he arrived with
    his girlfriend. The trial judge found, at para. 131, that the only reasonable
    conclusion to be drawn from this exchange was that MW was intended to be
    another armed participant, extra firepower it might be said, to assure the
    success of the plan.

[56]

The trial judge was satisfied
    beyond a reasonable doubt that MW was a joint principal in the plan to murder
    Tyrone, and that he would be equally liable as an aider in the commission of
    the offence.

[57]

SHB, on the other
    hand, stood in a very different position from the other three, because there were
    no text messages connecting him to the events on the day of the shooting. TFs
    text to MW, I didnt bring him [SHB], the d [Tyrone] did, suggested that SHB
    was not a part of the plan. These, and other aspects of the evidence, gave rise
    to reasonable doubt in relation to SHBs guilt and he was acquitted.

[58]

In the context of his
    analysis of the culpability of MW, the trial judge referred to the submission
    of both MW and TF that there was no evidence that the plan involved doing
    harm to Tyrone or killing him. He noted that the yur dum exchange between TF
    and MW indicated that events did not go as planned  that is, MW was telling TF
    that he was dumb for bringing SHB to the stairway, something that was not part
    of the plan. He observed that this exchange, and the absence of surprise,
    disbelief, shock or outrage in their text communications regarding Tyrones
    death, had relevance to the objective of the plan.

[59]

The trial judge
    explained his reasons for rejecting the defence submission, at paras. 126 and
    127:

It is submitted by the counsel for both TF and MW that, even if
    some plan existed between SB, TF and MW in respect of Tyrone, there is no
    evidence that the plan involved doing harm to Tyrone or, if harm was intended,
    that the harm rose to the extent of killing Tyrone. The problem with that
    submission is two-fold. First, as I have already said, there is simply no
    evidence that the killing of Tyrone was spontaneous or was the result of some
    unexpected event. There is no evidence of a dispute or a fight or of some other
    unanticipated event that could have spurred the killing of Tyrone. In other
    words, there is no evidence to which the defence can point that would provide a
    different interpretation of the various text messages other than there was a
    pre-arranged plan to kill Tyrone.

Second, if the killing of Tyrone was something that happened
    out of the blue and with no prior thought or consideration, one would have
    expected that there would have been some expression of that very sudden and
    troubling event between MW and TF. MW and TF, on the evidence, were very close
    friends. Indeed, there are text messages between MW and TF, immediately before TF
    turned himself into the police, where the two of them express their affection
    for each other. Yet neither MW nor TF ever express a single word of concern
    that someone that they know, and with whom they purported to be friends, has,
    on counsel's version of the events, been randomly murdered without warning by SB
    whom they also know and with whom they continue to communicate after the
    killing. If this was an unplanned and entirely spontaneous event, it is
    inconceivable that these two sixteen year old boys would not have voiced out
    their surprise and horror to each other, not only as to what had happened but
    the fact they are now deeply embroiled in it.

[60]

In concluding his
    reasons, the trial judge noted, at para. 150, the principle that where
    circumstantial evidence, if unexplained or uncontradicted, establishes the
    guilt of a person then, absent some explanation being offered, the accused
    person must expect that a conviction will follow: referencing
R. v. Lepage
,
    [1995] 1 S.C.R. 654, at para. 29. He rejected the submission that the so-called
    Code of Silence could be used as a shield by those accused of criminal
    offences so as to negate the application of this principle. He stated, at para.
    154, that a person accused of a criminal offence cannot avoid those
    consequences by his own adherence to a mindset called the Code of Silence and,
    through that manoeuvre, invite the court to make speculative assumptions
    favourable to his position or find reasonable doubt where it does not otherwise
    exist.

The Issues on Appeal

[61]

The appellants assert
    the trial judge made the following errors:

(a)

he used the appellants post-offence conduct to determine their level
    of culpability;

(b)

he committed a so-called
Villaroman
error, by reversing the
    burden of proof;

(c)

he misapprehended various pieces of evidence;

(d)

he made improper use of
ante mortem
hearsay;

(e)

he found the appellants liable as joint principals; and

(f)

the video evidence he relied upon was misleading.

[62]

I will consider each
    of these grounds in turn.

Analysis

A.

POST-OFFENCE CONDUCT

[63]

In my view, the trial
    judge was entitled to use the appellants failure to express surprise and
    horror or disbelief, shock or outrage after the murder to infer their
    participation in a pre-arranged plan to kill Tyrone and to exclude any other
    reasonable alternative. His use of the evidence is consistent with the
    authorities, including
R. v. MacKinnon
(1999), 132 C.C.C. (3d) 545
    (Ont. C.A.), at para. 15, and
R. v. Fatima
(2006), 42 C.R. (6th) 239
    (Ont. S.C.), at para. 68, to which he made reference. The evidence was
    inconsistent with the theory of a spontaneous and unintentional shooting and
    highly probative of intent to commit murder. He was entitled to draw the
    inference he did. His admission of the evidence is entitled to deference.

[64]

The trial judge did
    not otherwise review the law of post-offence conduct and he did not always
    express the purpose for which he used particular pieces of post-offence
    evidence. But he is presumed to know the law. There was ample evidence from the
    appellants messages before the shooting and their conduct thereafter, from
    which the judge could find that they participated in a plan to do
something
in relation to Tyrone. The real issue was
    whether that something was murder.

[65]

I will examine the
    trial judges use of the post-offence conduct shortly. I turn first to the law
    with respect to post-offence conduct in general and its use for the purpose of
    determining level of culpability in particular.

The governing principles

[66]

As has been pointed
    out on many occasions, post-offence conduct evidence invokes retrospectant
    reasoning. The occurrence of a subsequent act, state of mind or state of
    affairs is used to infer the occurrence of a prior act, state of mind or state
    of affairs. Post-offence conduct is circumstantial evidence, used to infer the
    existence of a fact in issue from the accuseds post-offence conduct: see
R.
    v. Salah
, 2015 ONCA 23, 319 C.C.C. (3d) 373, per Watt J.A., at paras.
    223-225;
R. v. Adamson
, 2018 ONCA 678, per Watt J.A., at paras. 55-68.

[67]

Post-offence conduct
    evidence is circumstantial evidence that may help the trier of fact determine
    the accuseds culpability for the crime:
R. v. Vorobiov
, 2018 ONCA
    448, per Laskin J.A., at para. 54. It is generally admissible to show that the
    accused acted in a manner which, based on human experience and logic, is
    consistent with the conduct of a guilty person and inconsistent with the
    conduct of an innocent person:
R. v. Angelis
, 2013 ONCA 70, 296
    C.C.C. (3d) 143, at para. 51.

[68]

The probative value of
    post-offence conduct depends on the nature of the evidence, the issues in the
    case, and the positions of the parties:
R. v. MacKinnon
, at para. 14. Post-offence
    conduct is admissible where, as a matter of logic, common sense, and human experience,
    it has a tendency to help the trier of fact resolve a live factual issue and
    there is no exclusionary rule barring its reception. It is then for the trier
    of fact to determine whether the evidence relates to the offence charged and,
    if so, how much weight should be attached to the evidence: see
R. v.
    Adamson
, at paras. 60, 62.

[69]

In
R. v. MacKinnon
,
    Doherty J.A. pointed out, at para. 14, that post-offence conduct may sometimes,
    as a matter of common sense and human experience, be capable of supporting an
    inference that the accused had a particular state of mind at the time of the
    offence.

[70]

That said,
    [n]ormally, post-offence conduct cannot help to determine the state of mind of
    an accused:
R. v. Chambers
, 2016 ONCA 684, 342 C.C.C. (3d) 285, at
    para. 103;
R. v. Adamson
, at para. 63. That is because in many cases,
    post-offence conduct is equally consistent with different levels of culpability
     for example, equally consistent with murder and manslaughter: see
R. v.
    White
, [1998] 2 S.C.R. 72;
R. v. Angelis
, at paras. 52-53. For
    this reason, great care must be exercised in using post-offence conduct to
    infer intent for murder:
R. v. Arcangioli
, [1994] 1 S.C.R. 129, at pp.
    145-47.

[71]

But there is no rule
    automatically preventing the use of post-offence conduct as proof of the level
    of an accuseds culpability: see
R. v. White
, 2011 SCC 13, [2011] 1
    S.C.R. 433, at paras. 40, 42, per Rothstein J.;
White

(1998)
,
    at para. 32. Rather, the use of post-offence conduct for this purpose is
    governed by the principle of relevance: evidence of post-offence conduct is
    admissible if it is relevant and its probative value is not outweighed by its
    prejudicial effect.

[72]

The case law,
    including decisions of this court, indicates that in circumstances similar to
    this case, post-offence conduct has been used to infer the intent to commit
    first degree murder. Where, based on logic and human experience, the evidence
    of post-offence conduct is more consistent with the inference advanced by the
    Crown than with competing inferences, it is relevant to and probative of the
    degree of culpability of the accused.

[73]

I turn to those
    cases.

[74]

In
R. v. MacKinnon
,
    the case cited by the trial judge, to which I have already made reference,
    MacKinnon and Crookes were charged with first degree murder of Norman Chow, who
    worked at a gun club. The Crowns theory was that MacKinnon had planned to
    steal guns from the club. Because he was known to employees of the club, he
    knew that he would have to kill whoever was working at the club when he stole
    the guns. He enlisted Crookes to participate in the robbery. The appellants
    shot Chow, stole a gun and some money, and fled in a car driven by Ransome.
    Ransome testified that MacKinnon and Crookes were excited and laughing when
    they returned to the car and said that they had sent Chow back to China.
    Ransome drove them to a schoolyard where they disposed of some things in a
    dumpster.

[75]

MacKinnon argued on
    appeal that the trial judge should have instructed the jury that evidence of
    the post-offence conduct could not assist them in determining his level of
    culpability, if they found he was a party to a culpable homicide.

[76]

In words that might equally
    be applied to the circumstances of this case, Doherty J.A. observed that the
    conduct of MacKinnon and Crookes, when viewed in its entirety, could support
    the Crowns argument that the killing was planned and deliberate and not the
    consequence of some other illegal activity, such as robbery, which had gone off
    the rails. As the evidence had some probative value on the issue of intent, it
    was properly left to the jury for consideration. He said, at para. 15:

The appellants' conduct as described by Ransome, from the time
    they fled the club until they disposed of evidence in the dumpster could, when
    viewed in its entirety, support the inference that they had done exactly what
    they had planned to do, that is, enter the club, commit a robbery and shoot Mr.
    Chow. This inference would lend considerable support to the Crown's claim that
    the murder was planned and deliberate. As the evidence had some probative value
    on the question of whether the appellants had engaged in a planned and
    deliberate murder as opposed to a robbery or some other illegal activity which
    had gone awry, the trial judge could not have instructed the jury that the
    evidence had no value in determining the appellants' level of culpability. The
    alleged non-direction does not constitute misdirection on the evidence adduced
    in this case.

[77]

The court dismissed
    this ground of appeal.

[78]

White (2011)
is
    another case in which the arguments bear some similarity to this case. There,
    the appellant shot the victim during an altercation and immediately fled the
    scene. He was charged with second degree murder. He conceded that he had shot
    the victim unlawfully and was guilty of manslaughter, but the Crown argued that
    the shooting was intentional. The issue, therefore, was whether White had the
    requisite intent for murder.

[79]

The defence argued
    that the shooting was accidental. In response, the Crown pointed out that the
    appellant had fled the scene without hesitation: "no hesitation here, no
    shock, no uncertainty on his part" and argued that one would expect
    hesitation if the shot had been anything other than intended. The trial judge
    instructed the jury that they could consider this post-offence conduct, but
    told them that they had to be careful with it and it might not be of much value
    to them in determining Whites state of mind at the time the shot was fired. White
    was convicted.

[80]

On appeal, the
    appellant argued that the trial judge should have specifically instructed the
    jury that the evidence about his flight had no probative value because it was
    equally consistent with manslaughter and second degree murder.

[81]

The majority of the
    Supreme Court rejected this submission. Rothstein J., writing for four justices,
    found that evidence of lack of hesitation before flight is more consistent with
    an intentional act than with an accident and, in turn, is probative of the
    state of mind of the accused at the relevant time. He observed, at para. 67:

As a matter of logic and human experience, one would expect an
    ordinary person to present some physical manifestation, such as hesitation, at
    a gun in their hand accidentally discharging into someone's chest, thereby
    killing them. It was open to the jury to infer that a failure to react in this
    way was incongruous with the theory, advanced by the defence, that the gun went
    off by accident as the two men struggled with each other. To use the language
    of
Arcangioli
and
White (1998)
, lack of hesitation was not
    "equally consistent with" or "equally explained by"
    accidentally as opposed to intentionally shooting the victim. It is less
    consistent with accident.

[82]

He found that the
    evidence that White did not hesitate when the gun was fired in response to this
    unexpected and calamitous turn of events supported the inference that White
    deliberately pulled the trigger.

[83]

Distinguishing between
    inferences that might be drawn from flight, as opposed to inferences that might
    be drawn from lack of hesitation before flight, he continued, at para. 70:

On the other hand, logic and human experience suggest that
    people are more likely to show some outward sign, such as hesitation, before
    continuing on with their actions, when they do something accidentally than when
    they do it on purpose. This is all the more so when the accident involves a
    sharp physical effect on the person (the discharge of a gun in one's hand) and
    results in a terrible consequence, such as having killed another person.
As I have discussed, lack of hesitation prior to flight, is
    less consistent with shooting and killing someone accidentally than it is with
    doing so intentionally. Thus, in the context of determining relevance, evidence
    of flight
per se
is different from evidence of lack of hesitation prior to
    flight
. [Emphasis added.]

[84]

Charron J., writing
    for two justices, agreed with Rothstein J. that the evidence of the appellants
    flight was properly left with the jury: at para. 130.

[85]

In
R. v. Vorobiov
,
    2018 ONCA 448, the appellant was convicted of first degree murder committed in
    an underground parking garage in Toronto. He and another accused, Smith, were
    at the parking garage at the time of the killing. Smith pleaded guilty to being
    an accessory after the fact, in helping Vorobiov to flee. There was a
    substantial body of evidence against Vorobiov, including the evidence of Smith,
    who identified him as the shooter, cellphone records, and intercepted telephone
    calls. There was also Vorobiovs post-offence conduct, which included driving
    to Port Perry with Smith after the shooting.

[86]

Vorobiov acknowledged
    that he had brought a gun and silencer to the parking garage on the day of the
    shooting, but claimed that he had changed his mind once in the garage and that
    Smith had taken the gun from him and shot the victim. He claimed that he was
    angry at Smith for having done so. It was in this context that the Crown
    pointed to Vorobiovs post-offence conduct as circumstantial evidence of his
    culpability for the offence charged.

[87]

Laskin J.A., speaking
    for the court, found that a jury could conclude that Vorobiovs post-offence
    conduct was more consistent with his being the shooter rather than the accomplice.
    The only live issue was the identity of the shooter. Vorobiov admitted he was
    involved in the murder plot, but denied he was the shooter.

[88]

Laskin J.A. asked
    whether logic and human experience would suggest that Vorobiov would be equally
    likely to flee the scene and drive away with Smith to Port Perry if he had shot
    Davis, or if Smith had shot Davis and he was angry at Smith for having done so.
    He stated, at para. 64:

Do logic and human experience suggest that Vorobiov would have
    been equally likely to flee the scene of the murder and drive with Smith to
    Port Perry if either he shot Davis or if he had a last minute change of heart
    and was angry at Smith for shooting Davis? If the answer to this question is
    "yes", then the trial judge erred by failing to give the jury a no
    probative value instruction on Vorobiov's post-offence conduct.

[89]

He observed, at para.
    65, that logic and human experience suggested that if Vorobiov had in fact had
    a change of heart and was indeed angry at Smith for shooting Davis, he would
    have wanted to get as far away from Smith as possible. Instead, he did the
    opposite. He remained at the scene of the murder; he allowed his own car to be
    used as the getaway car; he travelled with Smith to Port Perry; along the way
    he and Smith disposed of the gun, silencer, and backpack; and then he and Smith
    spent Davis' cash at the casino in Port Perry.

[90]

Laskin J.A. concluded,
    at para. 65, that a jury could infer from this conduct that Vorobiov was the
    shooter:

The jury could legitimately infer that Vorobiov's post-offence
    conduct was far more consistent with the conduct of a person who had shot
    Davis, than with the conduct of a person, who though planning to kill Davis,
    had changed his mind and refused to go ahead, and yet knew that his accomplice
    had done the shooting and was angry at him for doing so.

[91]

It was up to the jury,
    he said, to decide what inferences to draw from the conduct.

[92]

Finally, in
R. v.
    Aravena
, 2015 ONCA 250, 333 O.A.C. 264, at paras. 125-30, leave to appeal
    refused, [2015] S.C.C.A. No. 497, Doherty and Pardu JJ.A. held that the trial
    judge properly instructed the jury that it could consider that the accused was
    elated and excited after the killings in deciding whether he committed a
    planned and deliberate murder. The accused argued his post-offence conduct had
    no probative value concerning the degree of culpability for the homicides,
    because it was equally consistent with guilt of manslaughter, second degree
    murder, and first degree murder. Doherty and Pardu JJ.A. disagreed. They
    explained that the accuseds happiness suggested a number of logical
    possibilities  namely that he had obtained his goal, the events were not shocking
    but had unfolded according to plan, he knew about the plan, and/or he aided the
    killers with knowledge of the plan: [a]s a matter of logic and human
    experience, [the accuseds] conduct after the killing was relevant to whether
    he was a party to a planned and deliberate murder: at para. 130. See also:
R.
    v. Khan
, 2007 ONCA 779, 230 O.A.C. 174, at paras. 3-5.

[93]

With these principles
    in mind, I return to the evidence in this case.

Application of the principles

[94]

Post-offence conduct
    evidence must be assessed on a case-by-case basis bearing in mind the nature of
    the evidence, the issues at trial, and the positions of the parties. Therefore,
    as discussed above, some post-offence conduct may properly be relevant to one
    issue, but not relevant to another. Here, as I have noted, the two central
    issues were the identification of the parties to the plan and their level of
    culpability.

[95]

The trial judge
    identified the elements of first degree murder: (a) the accused caused the
    victims death; (b) the accused caused the victims death unlawfully; (c) the
    accused had one of the states of mind required for murder; and (d) the murder
    of the victim was both planned and deliberate. On the issue of culpability for
    first degree murder as it related to TF and MW, the critical question before
    the trial judge was whether the killing was planned and deliberate. The
    communication between the accused prior to the killing indicated that there was
    a plan to do something, but not what that something was. The defence position
    was that the execution-style killing of Tyrone by SB was not part of the plan
    and was unanticipated. The Crown sought to use some of the post-offence
    evidence to refute this theory and to establish that the killing was planned
    and deliberate.

[96]

The trial judge
    considered various evidence of post-offence conduct. A significant portion of
    the trial judges analysis was taken up with the identification of the
    participants in the plan. Much of the post-offence conduct was relevant to this
    issue of participation. For example, TFs change of clothing after the shooting
    and his instructions to his mother concerning the disposal of a gun were
    circumstantial evidence of his participation in the plan. Likewise, MWs
    willingness to blame it [the killing] on the jungle and his enthusiastic
    support of SBs suggestion that they should kill SHB were circumstantial
    evidence of his participation.

[97]

While these aspects of
    post-offence conduct were relevant to the issue of participation, they were not
    treated as central or determinative by the trial judge in his consideration of
    the separate issue of intent. The trial judge made it clear that it was the
    absence of expression of
any
surprise and horror
    or disbelief, shock, or outrage that removed any doubt that the purpose of the
    plan was to kill Tyrone.

[98]

The question, then, is
    whether the trial judge could reasonably conclude that this aspect of the
    appellants post-offence conduct, viewed in light of logic and human experience
    and in the context of the evidence as a whole, was more consistent with a
    planned and deliberate killing than with an unplanned and accidental killing.
    In my view, he could reasonably come to that conclusion and did not err in
    using the evidence for that purpose.

[99]

Consider the context. MW
    and TF professed to be close friends of Tyrone. There was independent evidence
    that they were close. Their good friend Tyrone was brutally executed in front
    of TF as a result of a turn of events that was allegedly wholly unanticipated. The
    very first text exchange between them, minutes after the murder, was from MW,
    Yur dum [for bringing a witness].

[100]

And the response
    was
not
I didnt know that SB was going to kill
    him. It was, essentially, I didnt bring the witness, Tyrone did.

[101]

In my view, it
    was open to the trial judge to conclude that this exchange, which centres on
    the appellants concern about a witness to the killing rather than on the
    horrific incident TF had just witnessed, was inconsistent with a spontaneous
    unplanned killing and consistent with a planned murder.

[102]

In closing argument,
    the trial judge challenged counsel on the theory that there was no plan to kill
    Tyrone. He suggested that on that theory, there should have been some
    expression of surprise by TF and MW at the shocking turn of events when their
    friend Tyrone was murdered  executed  right in front of TF. Trial counsel
    conceded that surprise would be expected, but suggested that the yur dum
    message meant, Your dumb, how could you let this happen? Why did you let this
    get out of hand? Youre the guy who was there. But, as the trial judge noted, TFs
    response, I didnt bring him, the d [Tyrone] did is inconsistent with this
    theory.

[103]

As the trial
    judge said: You would expect [TF]  if that was the  the telephone call, when
    [MW] texts him yur dum, you would expect [TF] to say, Well, I  I didnt
    know anything about this either and I dont control [SB] and I was as surprised
    as you are.

[104]

The judge then
    asked counsel:

Putting aside that particular exchange of text messages, can we
    agree that theres not a single text from [MW] expressing any type of shock or
    surprise or even concern that this happened? I mean theres nothing that
    where he says, you know, Oh my God, what were you guys doing? This isnt
    something I signed up for.

[105]

Counsel did not
    disagree with this proposition.

[106]

The trial judge revisited
    this issue in his reasons at para. 127, quoted earlier, when he discussed the
    appellants lack of concern, shock or horror at the shooting of their friend. He
    pointed to the exchange of text messages between TF and MW on the evening of
    November 22 and the early morning of November 23, 2010, the night before TF
    turned himself in to police. Again, consider the context. As the appellants
    would have it, the plan was only to rob, intimidate, or threaten Tyrone. The
    plan had gone horribly wrong. Tyrones sister Skyy had accused TF of setting up
    Tyrone. TF had become a suspect in a murder investigation and was about to
    surrender to police. In their lengthy exchange of texts, TF and MW expressed
    their affection for each other.

[107]

It was in
    considering these texts, and others exchanged between the two youths after the
    shooting, that the trial judge observed, at para. 127:

Yet neither MW nor TF ever express a single word of concern
    that someone that they know, and with whom they purported to be friends, has,
    on counsel's version of the events, been randomly murdered without warning by
    SB whom they also know and with whom they continue to communicate after the
    killing. If this was an unplanned and entirely spontaneous event, it is inconceivable
    that these two sixteen year old boys would not have voiced out their surprise
    and horror to each other, not only as to what had happened but the fact they
    are now deeply embroiled in it.

[108]

In this context,
    could logic and common sense suggest that there would be
some
expression, not only of shock and surprise, but of consternation that SB had
    acted contrary to the plan, had killed their good friend, and had implicated
    them in a murder?

[109]

In my view, they
    could. The appellants failure to express
any
shock, surprise, or horror in their text communications in the six days after
    the shooting is circumstantial evidence that they were not surprised by the
    shooting and, inferentially, that the shooting was part of the plan. The trial
    judge was entitled to conclude that the absence of a single word about the
    subject in their communications was consistent with the Crowns theory and
    inconsistent with the appellants.

[110]

The appellants
    acknowledge that shock and surprise might be expected, but suggest that shock
    and surprise may have been expressed in the telephone conversations between MW
    and TF after the shooting. In closing submissions, trial counsel for MW
    submitted that MW may have expressed surprise in his telephone conversations
    with TF in the immediate aftermath of the killing. But the trial judge
    suggested that this was not consistent with the appellants subsequent text
    message exchange. He found, at paras. 125 and 127, that there were no
    communications between the appellants in which they expressed surprise or shock
    regarding Tyrones death.

[111]

The trial judge
    was entitled to reject as illogical the suggestion that, if the shooting was
    unanticipated, the appellants would have expressed their shock, horror and
    outrage in their phone conversations but would have said nothing in their
    texts, which they exchanged frequently, freely, and privately.

[112]

The trial judge
    read hundreds of text messages between the participants in the period before
    and after the killing and he was well positioned to assess the likelihood that
    they would have discussed the shooting in their texts, had the killing been accidental
    or unanticipated.

[113]

The trial
    judges use of the post-offence conduct in this case was similar to the use
    made of such evidence to infer planned and deliberate murder in the cases I
    have discussed. Like MacKinnons excitement and laughter, Whites flight
    without hesitation, Vorobiovs failure to flee, and Aravenas elation, the
    conduct was inconsistent with the theory advanced by the accused and more consistent
    with the inference urged by the Crown.

[114]

It is further
    suggested that even if the evidence was relevant, it should have been excluded
    because its prejudicial effect exceeded its probative value. It is contended
    that the appellants lack of reaction to the shooting is understandable because
    gun violence was common in their neighbourhood.

[115]

First, as I have
    noted, the post-offence conduct in question was relevant. As Binnie J.
    explained in
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para.
    73, [p]robative value cannot be assessed in the abstract. The utility of the
    evidence lies precisely in its ability to advance or refute a live issue
    pending before the trier of fact. See also
R. v. Luciano
, 2011 ONCA
    89, 273 O.A.C. 273, at para. 230. In this case, whether the appellants had the
    requisite intent for first degree murder was a live issue. Evidence that they were
    not surprised by Tyrones death had a tendency to establish the proposition for
    which it was tendered  namely, that they intended to kill him.

[116]

Second, the
    trial judge clearly saw the evidence as highly probative. His reasons, at
    paras. 93 and 126-127, make it clear that he viewed the appellants lack of shock,
    surprise, and outrage at the killing to be highly probative of their intent. He
    said, at para. 93, that the evidence removed all doubt. The yur dum exchange
    minutes after the shooting, combined with the absence of any expression of
    shock, surprise, and outrage in the messages exchanged in the hours and days
    after the killing, support the inference that the appellants were not surprised
    by the killing and are therefore probative of the appellants intent to kill
    Tyrone.

[117]

I do not agree
    that the trial judge should have discounted the probative value of the absence
    of shock and surprise because the appellants lived in a violent environment. The
    trial judge spent over three weeks of trial immersed in the culture and
    language of that environment. Isolated examples of conduct of others who were
    peripheral to the events says nothing about what would be expected from the
    appellants, who were deeply involved in setting Tyrone up for something. The
    trial judge was entitled to conclude that if the appellants did not expect
    Tyrone to be killed, they would have displayed some evidence of that surprise
    in their many communications in the six days after the killing. And he was
    entitled to infer from this that the appellants intended that Tyrone would be
    killed.

[118]

Third, the risk
    of prejudice was substantially attenuated, if not eliminated, in this
    judge-alone trial. The risk of prejudice in a jury trial is that the jury may
    jump too quickly from evidence of post-offence conduct to an inference of
    guilt, without giving appropriate consideration to alternative explanations
    for the conduct:
White (1998)
, at para. 57. This may cause the jury to
    give the evidence more weight and persuasive value than it warrants:
White
    (2011)
, at paras. 133, 137.

[119]

In a jury trial,
    we rely on judicial experience and intervention to inform the jury of competing
    explanations and inferences available from the evidence. The trial judge is
    called upon to caution the jury that inferences from post-offence conduct
    should only be drawn after they have considered all the evidence. See
White
    (1998)
, at para. 57. As Rothstein J. noted in
White (2011)
, at
    para. 33, [t]he purpose of such a caution is to alert the jury to the danger,
    which has been recognized through judicial experience, but then to allow the
    properly informed jurors to evaluate the evidence with care.

[120]

In my view there
    was no reason, in this judge-alone trial, to exclude the evidence of post-offence
    conduct because of its prejudicial effect. The trial judges experience and
    presumed knowledge of the law can be relied upon to guard against the risks of
    such evidence and to examine competing explanations and inferences.

[121]

I would dismiss
    this ground of appeal.

B.

VILLAROMAN
 REVERSING THE BURDEN OF PROOF

[122]

The appellants
    claim that the trial judge made what they describe as a
Villaroman
error. Insofar as I am aware, this term is unique and appears nowhere in the
    jurisprudence of this court or any other court in Canada. In my view,
Villaroman
is simply a re-articulation and clarification of the law with respect to
    circumstantial evidence. As Feldman J.A., dissenting but not on this point,
    said in
R. v. Youssef
, 2018 ONCA 16, at para. 9,
Villaroman
is
    largely a restatement of the traditional test from
Hodge's Case
(1838),
    2 Lewin 227, 168 E.R. 1136. Nor did Cromwell J. state new law when, at para. 35
    of
Villaroman
, he said that [i]n assessing circumstantial evidence,
    inferences consistent with innocence do not have to arise from proven facts.
    He cited
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58,
    for that proposition.

[123]

The appellants
    point to para. 93 of the judges reasons, arguing that he reversed the burden
    of proof by requiring the defence to establish through affirmative evidence an
    alternative theory inconsistent with a planned killing. They say that
    reasonable doubt existed by virtue of alternative explanations that were
    available from gaps in the evidence. They suggest that the trial judge failed
    to consider any scenario in which the murder was not planned because he found
    nothing in the evidence pointing to that scenario.

[124]

With respect, I do
    not agree.
Villaroman
reminds us that in a circumstantial evidence
    case such as this, the trial judge must consider other plausible theories and
    other reasonable possibilities that are inconsistent with guilt. Those
    theories must be based on logic and experience applied to the evidence or absence
    of evidence, not on speculation.

[125]

In my view, as I
    will explain, the trial judge did what he was required to do. And at the end of
    the day, he concluded that the circumstantial evidence in this case excluded
    any reasonable alternative to guilt.

The governing principles

[126]

In
Villaroman
,
    the accused was charged with possession of child pornography after a computer
    repair technician discovered it on the appellants computer.

[127]

The evidence was
    circumstantial. It came from the technician and a forensic computer specialist.
    The computer was a laptop and was not password protected. The Crown presented
    no evidence to show that the accused was using the computer when the
    pornography was accessed. The trial judge rejected the accuseds theory that
    the pornography could have been accessed by someone else when he was not using
    the computer.

[128]

The trial judge
    in
Villaroman
described this and other theories as hypothetical,
    finding that there was no evidence to support them. The Crown did not have the
    added burden of negativing every conjecture to which circumstantial evidence
    might give rise and which might be consistent with the innocence of the
    accused: 2013 ABQB 279, 562 A.R. 105, at para. 47, quoting
R. v. Paul
,
    [1977] 1 S.C.R. 181, at p. 191. Villaroman knew the nature of the material, had
    the intention to possess it, and had the necessary control over it. The trial
    judge convicted the accused.

[129]

The trial judgment
    was reversed by the Alberta Court of Appeal: 2015 ABCA 104, 320 C.C.C. (3d) 50.
    It found that the trial judge erred by requiring that reasonable doubt be based
    only on evidence, as opposed to an absence of evidence. The court stated, at
    para 19: The trier of fact must find no evidence, and no gap in the evidence,
    which raises a reasonable doubt. Such gaps include a gap in the evidential
    support for an inference needed to prove an element of the offence. That is, of
    course, a factual question for the trier of fact.

[130]

The Court of
    Appeal found that a properly-instructed jury acting reasonably could not have
    found the appellant guilty of possession of child pornography. It reversed and
    entered an acquittal.

[131]

At the Supreme
    Court, Cromwell J. noted, at paras. 35-36, that conclusions alternative to
    guilt can arise from both evidence and the absence of evidence. Requiring
    proven facts to support explanations inconsistent with guilt reverses the
    burden of proof and is inconsistent with the principle that reasonable doubt is
    assessed by a consideration of all the evidence. A reasonable doubt, or a
    theory alternative to guilt, is not speculative because it arises from a lack
    of evidence.

[132]

But whether
    inferences arise from evidence or lack of evidence, they must be plausible and
    reasonable inferences that flow logically from the evidence, in light of human
    experience and common sense. He said, at para. 37:

When assessing circumstantial evidence, the trier of fact
    should consider "other plausible theor[ies]" and "other
    reasonable possibilities" which are inconsistent with guilt:
R. v.
    Comba
, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A.,
    aff'd [1938] S.C.R. 396;
R. v. Baigent
, 2013 BCCA 28, 335 B.C.A.C. 11,
    at para. 20;
R. v. Mitchell
, [2008] QCA 394 (AustLII), at para. 35.
I agree with the appellant that the Crown thus may need to
    negative these
reasonable
possibilities, but certainly does not need to "negative
    every possible conjecture, no matter how irrational or fanciful, which might be
    consistent with the innocence of the accused"
:
R. v. Bagshaw
,
    [1972] S.C.R. 2, at p. 8. "
Other plausible
    theories" or "other reasonable possibilities" must be based on
    logic and experience applied to the evidence or the absence of evidence, not on
    speculation.
[Emphasis added.]

[133]

He added, at
    para. 38, that while the line between a plausible theory and speculation is
    not always easy to draw, the basic question is whether the circumstantial
    evidence, viewed logically and in light of human experience, is reasonably
    capable of supporting an inference other than that the accused is guilty. Put
    another way, at para. 41, to justify a conviction, the circumstantial
    evidence, assessed in light of human experience, should be such that it
    excludes any other reasonable alternative.

[134]

Referring to
R.
    v. Dipnarine
, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25, he
    noted that the circumstantial evidence does not have to totally exclude other
    conceivable inferences and the trier of fact should not act on alternative
    interpretations of the circumstances that it considers to be unreasonable; and
    that alternative inferences must be reasonable, not just possible.

[135]

Cromwell J.
    found that although there were some problematic statements in the trial
    judges reasons, there was no reversible error when those statements were
    considered in context and against the reasons considered as a whole. The trial
    judge recognized and applied the standard of proof beyond a reasonable doubt,
    and properly noted that reasonable doubt cannot arise from speculation or
    conjecture.

[136]

On the contrary,
    the Alberta Court of Appeal had erred by focusing on hypothetical alternative
    theories and, at times, engaging in speculation rather than on the question of
    whether the inferences drawn by the trial judge, having regard to the standard
    of proof, were reasonably open to him: at para. 67.

[137]

At para. 71,
    Cromwell J. referred once again to
Dipnarine
, noting that it is
    fundamentally for the trier of fact to draw the line in each case that
    separates reasonable doubt from speculation. The trier of facts assessment can
    be set aside only where it is unreasonable. He concluded that [w]hile the
    Crowns case was not overwhelming, my view is that it was reasonable for the
    judge to conclude that the evidence as a whole excluded all reasonable
    alternatives to guilt.

[138]

Decisions of
    this court since
Villaroman
demonstrate that merely because a trial
    judge rejects an alternative theory inconsistent with guilt does not mean that
    he or she committed a so-called
Villaroman
error. It may simply mean
    that there was no available inference, other than guilt, that was reasonable,
    given the evidence and the absence of evidence, and in light of human
    experience and common sense:
R. v. Arnaud
, 2017 ONCA 440, at para. 17.
    Nor does the use of expressions such as no evidence to the contrary or no
    competing narrative signal a
Villaroman
error or a misplacement of
    the burden of proof:
R. v. Pun
, 2018 ONCA 240, leave to appeal
    refused, [2018] S.C.C.A. No. 133;
R. v. Caporiccio
, 2017 ONCA 742.

[139]

Consistent with
    the observations of Cromwell J. in
Villaroman
, the cases illustrate a
    high level of deference to a trial judges conclusion that there are no
    reasonable alternative inferences other than guilt. In
R. v. Loor
,
    2017 ONCA 696, this court observed, at para. 22, that, [a]n appellate court is
    justified in interfering only if the trial judges conclusion that the evidence
    excluded any reasonable alternative was itself unreasonable.

Application of the principles

[140]

I turn to the
    appellants submissions with respect to the
Villaroman
error.

[141]

The appellants
    argue that the trial judge reversed the burden of proof. It was not the
    responsibility of the defence to show alternative theories, and the trial judge
    should have considered whether the absence of evidence or gaps in the
    evidence raised a reasonable doubt about the existence of a plan to kill Tyrone.
    The shooting could have been spontaneous in spite of the absence of affirmative
    evidence of a dispute.

[142]

The only theory
    alternative to guilt advanced in the court below and in this court, was that
    the plan was something less than murder and that it went offside. MWs
    position before the trial judge was that he had no knowledge why SB wanted to confront
    Tyrone at the building. SB may have acted on an impulse while there for some
    other purpose, such as intimidation.

[143]

TFs submission
    was that while he allowed SB to enter the complex, and while SB was the
    shooter, he was unaware of SBs intentions and did not knowingly aid in the
    commission of an offence. In this court, he further suggested that the killing
    was part of a plan related to Tyrones drug debt, an explanation not advanced
    in argument at trial.

[144]

Leaving aside
    the fact that this explanation was not advanced in the court below, and the
    trial judges finding that there was no apparent connection between the
    appellants and Tyrones drug debt, the complaint is that the trial judge did
    not consider any other theory inconsistent with guilt that could arise from the
    evidence or from the absence of evidence. However, the only conceivable theory is
    the one advanced by the appellants  namely, whatever the underlying motivation
    for their actions, the appellants intended to set Tyrone up for some purpose
    other than murder  for example, to be robbed, intimidated or assaulted.

[145]

The trial judge
    did, in fact, turn his mind to this theory. As I have pointed out in the discussion
    of post-offence conduct, the trial judge challenged counsel on this alternative
    theory in light of the yur dum message and its response.

[146]

At paras. 93,
    126, and 127 of his reasons, the trial judge considered, and rejected, the
    possibility that the shooting was impulsive, spontaneous, or unexpected. He gave
    two reasons for rejecting this theory. The first was that there was no evidence
    of any spontaneous occurrence, such as a dispute, fight, or confrontation, that
    might have led to a sudden decision to kill Tyrone. Although the judge did not
    specifically mention it at this point in his reasons, not only was there no
    evidence of a spontaneous occurrence, there was evidence he referred to earlier
    in his reasons that tended to exclude that possibility: the execution-style
    nature of the killing; the absence of other injuries to the victim; and the
    evidence of TW who heard no loud voices or argument when he was passing through
    the stairwell shortly before the killing.

[147]

The appellants
    impugn the trial judges observations that there was nothing on the evidence
    to sustain a finding that the shooting of Tyrone was unexpected or spontaneous
    (para. 93) and no evidence of a dispute or fight or some other unanticipated
    event (para. 126). They say that this signals a focus on proven facts, rather
    than the evidence or absence of evidence.

[148]

In
R. v.
    Caporiccio
, above, similar complaints were made that the trial judges
    language indicated a reversal of the burden of proof by requiring the appellant
    to adduce positive evidence of his innocence. This court did not give effect to
    this argument, observing that the judge was simply signalling that there was no
    evidence contradicting the evidence that she had accepted as true. She made no
    error in stating that there was no evidence to the contrary when that was in
    fact the case.

[149]

The court
    stated, at paras. 30-31:

While on a few occasions the trial judge references the fact
    that there was "no evidence to the contrary", taken in context this
    expression does not reveal a reversal of the burden of proof. At no time does
    the trial judge suggest that she accepts evidence
because
there was no
    evidence to the contrary. Instead, in using the impugned expression, she is
    simply signaling that there was no evidence contradicting certain pieces of
    evidence that she accepted as true. There was nothing wrong with making this
    observation.

The appellant also claims that the trial judge erred by noting
    the absence of evidence supporting the appellant's position that the monies Mr.
    Sabato paid to the appellant's companies were extraneous to the fraudulent
    loans. The trial judge was not bound to find that the money disbursed to the
    appellant by Mr. Sabato was "clean" money. Her observation that there
    was no evidence supporting the defence suggestion that the monies were
    extraneous to the fraud is true; there was no such evidence. There was nothing
    wrong with her saying this. She did not reverse the burden by making this
    observation. [Emphasis in original].

[150]

In my view,
    similar expressions used by the trial judge in this case, considered in context
    and together with his reasons as a whole, simply signal that the inference he
    accepted based on the totality of the evidence  a planned and deliberate
    murder  removed any doubt about an alternative inference.

[151]

The second
    reason the trial judge gave for rejecting the theory, as I have noted, was the
    absence of any communications between TF and MW indicative of surprise or
    horror about the allegedly random and unplanned killing of their friend Tyrone
     and in the case of MW, his continued communications with SB, including a
    discussion of killing SHB.

[152]

In my view, the
    appellants complaints of a
Villaroman
error are unfounded. The
    trial judge did precisely what
Villaroman
instructs. He considered the
    evidence and the absence of evidence in light of human experience and rejected as
    speculative the theory that the shooting was spontaneous and unplanned. He was
    entitled to draw the line between plausible theory and speculation exactly
    where he did. There was no evidentiary gap in the Crowns case that as a matter
    of common sense, logic, and human experience gave rise to a reasonable
    inference that the shooting was unplanned.

[153]

The appellants
    are inviting this court to do what the Alberta Court of Appeal did in falling
    into error in
Villaroman
. The Supreme Court reminds us that the circumstantial
    evidence does not have to totally exclude other conceivable inferences:
Villaroman
,
    at para. 42, citing
Dipnarine
, at para. 22. Rather, it is for the
    trier of fact to decide whether the circumstantial evidence, when considered in
    light of human experience and the evidence as a whole, including the absence of
    evidence, excludes all reasonable inferences other than guilt:
Villaroman
,
    at para. 41.

[154]

When the trial
    judges reasons are read as a whole and in the context of the live issues and
    arguments at trial, as they must be, he did not misapply the burden of proof.
    In particular, when para. 93 of the reasons is considered alongside paras. 126
    and 127, it is apparent that the trial judge applied logic and human experience
    to conclude that the evidence and the lack of evidence did not raise a
    reasonable doubt. He considered the only available alternative theory and
    rejected it. His conclusions are reasonable and are entitled to deference.

C.

Misapprehension of the Evidence

[155]

The appellants
    claim that the trial judge misapprehended several aspects of the evidence. In
    my view, none of their complaints meet the test for appellate review  a test
    repeatedly described as a stringent one. The misapprehension must relate to
    material parts of the evidence and the error must play an essential part in the
    reasoning process of the trial judge resulting in the conviction:
R. v.
    Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 221;
R. v. Lohrer
,
    2004 SCC 80, [2004] 3 S.C.R. 732, at para. 4.

[156]

In
R v.
    Orwin
, 2017 ONCA 841, this court added, at para. 45, that:

Said in another way, an error in the assessment of evidence
    will amount to a miscarriage of justice only if striking it from the judgment would
    leave the trial judge's reasoning on which the conviction is based on unsteady
    ground:
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.

[157]

I will briefly
    consider each complaint.

Girlfriend to the residential complex

[158]

MW contends that
    the trial judge misapprehended the evidence about his text to SB, before the
    shooting, stating You make me know wagwan b4 I go there with my girlfriend.
    [you let me know whats going on before I go there with my gun.] He contends
    that the trial judge erred in treating there as referring to the complex,
    when the expert on urban slang had concluded that it referred to a trip MW and
    SB were planning to a rival neighbourhood the following day.

[159]

I do not accept
    this submission. It was for the trial judge and not the expert witness to
    interpret this piece of evidence in the context of all the other evidence. The
    trial judge did so. The conclusion that there referred to the complex and
    hence that MW was intending to bring his gun (girlfriend) to the complex was a
    reasonable one.

No y

[160]

The appellants submit
    the trial judge made a second error by interpreting SBs text no y as meaning,
    You know why, when the correct interpretation was No. Why?

[161]

The trial judge
    addressed this argument in his reasons, at para. 52:

It is suggested by counsel for MW that this last message is SB
    telling MW that he will not tell him what is going on and why would he do so. I
    do not accept that suggested interpretation. There is nothing in the messages
    that would suggest that SB would rebuff MW in this fashion. It is also
    important to realize that the word "no" is often used in these text
    messages as a short form of "know". In my view, given the overall
    context of these messages, the proper interpretation of this message is that SB
    is telling MW that MW knows what is going on as in "you know why".

[162]

The trial judge
    considered the evidence in context. I am not satisfied that he misapprehended
    it, but if he did, it was of no significance and did not impair the reasoning
    process leading to conviction.

Transfer, concealment, removal of firearm

[163]

TF contends that
    the trial judge misapprehended the evidence in concluding: that SB handed the
    gun to him when they left the stairwell after the shooting; that TF ran from
    the stairwell carrying the gun; and that TF asked his mother to dispose of the
    gun.

[164]

The trial judge
    did not find it necessary to determine what became of the gun, which was never
    found. There was ample evidence to support his conclusions on this issue and I
    would not give effect to the appellants submissions.

The observation regarding membership in a gang

[165]

The appellants contend
    that the trial judge erred in concluding that they were members of the same
    gang as SB. The impugned portion of the reasons is at para. 95:

There is also some indication on the evidence that SB and MW
    were part of some loosely defined group or gang. It seems likely, if that was
    the case, that TF was also part of this group or gang given the close
    relationship between him and MW. There is no evidence that Tyrone was part of
    this same group or gang, however, nor is there any evidence that he was part of
    any other group or gang. A conclusion that the existence of this group or gang
    somehow played a role in Tyrone's death could, once again, only be founded on
    speculation.

[166]

In my view, this
    statement is the antithesis of a finding. Moreover, there were text messages
    between MW and SB, discussed by the trial judge, at paras. 54 and 55, which
    were capable of the interpretation that: MW was a more junior member of the
    gang than SB; MW was concerned that he had somehow fallen out of favour; and SB
    was reassuring him that this was not the case.

[167]

In any event,
    the misapprehension of the evidence, if there was one, clearly played no role
    in the trial judges reasoning.

The finding that TF was not with Tyrone throughout

[168]

At the outset of
    his analysis concerning TFs liability, the trial judge said, at para. 108:

I now turn to TF. There is no interpretation of the text
    messages that took place between TF and MW and between TF and SB that allow for
    any conclusion other than TF was assisting in the plan to kill Tyrone. Indeed,
    it is evident that TF's friendship with Tyrone is of some importance to the
    plan. It is TF who alerts MW, and through him to SB, that Tyrone has arrived at
    [the complex]. It is TF who goes to see Tyrone shortly after his arrival
    including brushing past F when she tries to pretend that Tyrone is not home. It
    is TF who, because of his relationship with the Bracken family, can come and go
    within the Bracken apartment without raising any concern.
It is TF who is with Tyrone in the hallway and in the staircase
    off and on throughout the time after Tyrone's arrival until Tyrone is killed
as established by the evidence of both F and Tyrone's mother. [Emphasis added.]

[169]

The appellant TF
    submits that the trial judge misapprehended the evidence because he was not
    with Tyrone throughout. The judge did not say he was. The judge said he was
    with Tyrone
off and on
 throughout the material
    time. There was no misapprehension of the evidence.

The failure to deal with the 20 minute gap

[170]

Related to the
    preceding issue is TFs complaint that the trial judge failed to consider what
    took place during gaps when there was no video surveillance of some or all of
    the participants. This included times when SHB and TF were together without
    Tyrone and times when SHB was with Tyrone and TF was absent.

[171]

Again, I am not
    satisfied that this alleged misapprehension of the evidence had any impact on
    the trial judges assessment of the evidence.

That TF pressured Tyrone to leave

[172]

Early in his
    reasons, the trial judge described some of the events at Tyrones mothers
    apartment, after Tyrone arrived. He observed, at para. 13, that Tyrones mother
    believed that TF and the other male (SB) were pressuring Tyrone to leave the
    apartment.

At some later point, Tyrone's mother believes that yet another
    male arrived because Tyrone came into the apartment and asked F for her cell
    phone. The expressed reason for wanting the phone was so that Tyrone could
    record the telephone number for this male in F's phone. Tyrone did not have a
    cell phone nor was he permitted to be in possession of one because of his bail
    conditions. It appears that Tyrone avoided this condition by using other
    people's phones especially F's. Tyrone's mother says that about ten minutes
    after Tyrone came in looking for F's phone, Tyrone said that he was leaving.
    Subsequently, F told her that Tyrone had left and that he was going to the
    store. Tyrone's mother added that, prior to Tyrone leaving, she felt that TF
    and this other male were pressuring Tyrone to leave.

[173]

The appellant TF
    asserts that the trial judge misapprehended the evidence in stating that Tyrone
    was being pressured to leave the apartment.

[174]

I make two
    observations with respect to this issue. The first, which TFs counsel
    concedes, is that there is a portion of the cross-examination of Tyrones
    mother by counsel on behalf of SHB that at the very least explains the trial
    judges observation.

[175]

The second, and
    more important point, is that the judge did not refer to this evidence as part
    of his analysis of TFs role in the events of the shooting and there is no
    indication that this alleged error, if it was one, played any role in his
    reasoning process.

The rap lyrics

[176]

The appellant TF
    takes issue with the trial judges reference to the rap lyrics authored by TF
    and discovered more than two and a half years after the killing. They were
    nevertheless admitted in evidence without objection from the defence. Further,
    the trial judge said that he could not place great reliance on the lyrics and
    there is no indication that he did so.

[177]

For these reasons,
    I would not give effect to this ground of appeal. I turn to the complaint
    concerning the admission of certain
ante-mortem
statements made by
    Tyrone.

D.

The
Ante-Mortem
Hearsay Evidence

[178]

TF submits that
    the trial judge erred in relying on hearsay evidence, recounted by F, to find
    that the relationship between Tyrone and TF was unsettled. F testified that
    Tyrone had expressed concern that TF was going to set him up and expressed
    distrust of his friends at [the complex] and, in particular, of TF. Tyrones
    sister testified that Tyrone did not trust TF.

[179]

This ground of
    appeal must be considered in context. At the commencement of trial, the
    appellants re-elected trial by judge alone. As part of the re-election, it was
    agreed that certain pre-trial motions by the defence would be abandoned. This
    included a motion to exclude Tyrones
ante-mortem
statements. It was
    agreed that at the end of trial the judge could decide what use could be made
    of this evidence, after hearing submissions of counsel. In closing submissions,
    TFs counsel argued that some of the statements (pertaining to Tyrones dreams)
    should be given no weight and that others had limited probative value.

[180]

The trial judge expressly
    said he did not take the evidence of Skyy and F regarding Tyrones distrust of
    his friends at the complex and TF in particular very far in terms of their
    evidentiary value. But he observed that their evidence, coupled with Tyrones
    recent tattoo, trust no one, and statements he made to his mother
    demonstrated that the relationship between TF and Tyrone was very unsettled at
    the time of his murder. He concluded, at para. 118: The submission that TF
    would have no reason to do harm to Tyrone because TF was a good friend of
    Tyrone and the Bracken family loses whatever persuasive value it may have in
    light of this changed relationship.

[181]

In my view,
    considered in context, the absence of objection to the admissibility of the
    evidence and the limited weight given to the statements by the trial judge, indicate
    that the trial judge did not make inappropriate use of the statements.

E.

Party Liability

[182]

The trial judge
    concluded that MW was a party to the murder as a joint principal. He found that
    he would be equally liable as an aider in the commission of the offence. MW
    contends that the trial judge erred in finding him liable as a joint principal.

[183]

Section 21(1) of
    the
Criminal Code
sets out the liabilities of parties to an offence:

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

a.       Actually commits it;

b.       Does
    or omits to do anything for the purpose of aiding any person to commit it; or

c.       Abets any person in committing it.

[184]

The issue is
    only of academic interest in light of the trial judges conclusion that MW was
    liable as an aider. He played a central role in informing SB that Tyrone was at
    the complex and in linking SB and TF. His pre-offence and post-offence
    conduct clearly demonstrated that he was a participant in the plan. See
R. v.
    Fatima
(2006), 42 C.R. (6th) 239 (Ont. S.C.), at para. 68, to which the
    trial judge made reference: A person may commit planned and deliberate first
    degree murder as an aider and abettor, either by participating in the planning
    and deliberation [of a planned and deliberate murder] or by helping or
    encouraging what the aider and abettor knows is a planned and deliberate
    murder: referring to
R. v. Wong
(1992), 71 C.C.C. (3d) 490, at p. 500
    (B.C.C.A.), per McEachern C.J.B.C., leave to appeal refused, 20 B.C.A.C. 80;
    and
R. v. Gray
(1992), 66 C.C.C. (3d) 6, at p. 18-19 (Ont. C.A.), per
    Dubin C.J.O., leave to appeal refused, 69 C.C.C. (3d) vi.

[185]

As the trial
    judge did not outline the factual or legal basis for his conclusion as to joint
    principal liability, and counsel have not referred us to any authorities
    directly on point, I do not propose to address the issue. Both appellants were
    clearly liable as aiders.

F.

Submission concerning the integrity of the video evidence

[186]

At the hearing
    of the appeal, counsel for TF raised a new issue, concerning the integrity of
    the video evidence. The submission focused on the security camera recordings of
    the movements of SHB, TF, and SB as they exited the west stairwell. The trial
    judge observed, at paras. 111-112 of his reasons, that just after TF exited the
    stairwell door he stopped and turned back towards SB, who had his arms
    stretched out towards TF, TF hesitated very briefly and then turned and ran
    towards another building:

Three people flee the scene of the murder. Two of them are
    clearly TF and SHB. The third person must be SB because he is the only other
    person in the staircase other than Tyrone. The first person out is SHB who runs
    without any hesitation directly towards [another building in the complex] where
    his mother lives. The next person out is TF followed almost immediately by SB
    who has his arms stretched out in the direction of TF. TF stops and turns back
    towards the area of the door and this person. TF hesitates very briefly in this
    area and then starts to run towards [another building in the complex].

[187]

The trial judge
    found a compelling inference from the evidence that SB passed the murder weapon
    to TF as they left the staircase. He inferred that TF asked his mother to
    dispose of the murder weapon. As I have noted, he observed that it was not
    necessary to determine what became of the murder weapon.

[188]

Counsel for TF
    submitted that in the conversion of the original security camera video to a
    medium used for display in court, a distortion was introduced that had the
    potential effect of creating an artificial stutter of the video when it was
    played, making it appear that TF had paused after leaving the stairwell, when
    he had not in fact done so.

[189]

Counsels
    submissions, which were disputed by the Crown, were based solely on his own
    analysis of the recordings. He tendered no expert evidence. At the end of the
    hearing, it was left with counsel to discuss whether a fresh evidence
    application would be brought in support of this argument. Counsel subsequently
    resolved the issue based on an agreed statement of facts, which we received on
    consent. We did not consider it necessary to receive further submissions.

[190]

The agreed
    statement of facts indicates that the source video was recorded at 15 frames
    per second. It was converted to a rate of 30 frames per second for the purpose
    of trial. This should have resulted in each frame of the video being displayed
    twice. Instead, when the 5 seconds of source video (containing 75 frames) were
    displayed, some frames were displayed only once, some appeared twice, and some
    three times.

[191]

Having reviewed
    the statement of agreed facts and the attachments, I see no basis on which to
    conclude that this technical anomaly could have affected the trial judges
    assessment of the evidence.

[192]

Counsel for TF
    acknowledges that there appears to have been some form of contact between SB
    and TF after they exited the stairwell door. I have noted that TF ran from the
    scene in a manner consistent with someone attempting to conceal a gun. Later
    that evening, TF asked his mother to clean something and to dispose of it.
    The trial judge was entitled to draw a reasonable inference from the foregoing
    that SB handed the murder weapon to TF and that TF disposed of it. The judge
    expressly stated that the inferences he drew were not necessary for the purpose
    of determining TFs liability.

[193]

In my opinion,
    this ground of appeal is without merit.

Conclusion

[194]

This is a
    difficult case for a number of reasons, not the least being the youth of the
    victim and the appellants, the circumstantial nature of the evidence, the
    absence of witnesses, and the impact of the Code of Silence. As in
Villaroman
,
    the Crowns case was not overwhelming. As in
Villaroman
, not every
    trier of fact would inevitably have reached the same conclusion as the trial
    judge. But, as in
Villaroman
, it was for the trier of fact to draw the
    line between reasonable doubt and speculation. The trial judge did so and
    concluded that the post-offence conduct at issue excluded all reasonable
    alternatives to guilt. I see no basis on which to disturb that conclusion.

[195]

For these
    reasons, I would dismiss the appeal.

Released: GRS  OCT 10 2018

G.R. Strathy C.J.O.

I concur. R.G.
    Juriansz J.A.

I concur. L.B.
    Roberts J.A.

[1]
In the title of proceedings and in the Reasons for Judgment in the Superior
    Court, SB is referred to as S.B.1 and SHB is referred to as S.B.2.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sauve, 2018 ONCA 813

DATE: 20181015

DOCKET: C64134

Simmons, Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Clark Eric Sauve

Appellant

Louis P. Strezos, as duty counsel

Clark Eric Sauve, acting in person

Lorna Bolton, for the respondent

Heard: October 3, 2018

APPEAL BOOK ENDORSEMENT

[1]

Following a judge alone trial, the appellant was convicted of the second
    degree murder of his wife. He was sentenced to life imprisonment with no
    eligibility for parole for twelve years.

[2]

On behalf of the appellant, duty counsel argued that the trial judge
    materially misapprehended the evidence at trial with the result that he failed
    to consider potentially exculpatory evidence under the third prong of
W.D.

[3]

We agree that the trial judge erred when he stated there was no video
    recording of a demonstration conducted by police to determine how long it may
    have taken a person in a wheel chair to go from the upstairs master bedroom via
    the stair lift to a wheel chair on the main floor and then to a nearby alarm
    keypad. In fact, contrary to the trial judge's statement, the police video
    recording of the demonstration was played in court on the first day of the
    trial and was entered as an exhibit.

[4]

Nonetheless, we are not persuaded that the trial judge's error amounted
    to a material misapprehension of the evidence adduced at trial warranting
    appellate intervention.

[5]

As we read his reasons, despite saying that no video recording had been
    filed, the trial judge took full account of the demonstration evidence but
    concluded that it did not give rise to a reasonable doubt.

[6]

In particular, the trial judge's reasons show he fully appreciated the
    defence position concerning the significance of the demonstration evidence,
    namely, that it could give rise to a reasonable doubt whether the appellant was
    the only person in the house when his wife was shot.

[7]

The defence position was premised on the fact that it took 52 seconds in
    the demonstration video for the demonstration officer to reach the alarm keypad
    going from the master bedroom to the keypad using wheelchairs and the stair lift.
    On the other hand, one possible interpretation of the evidence concerning the
    events at issue was that the alarm system was deactivated by entering a code in
    the keypad within 32 seconds of the alarm being triggered - a feat the defence
    submitted the demonstration video suggested the appellant, in his wheel chair,
    was incapable of performing.

[8]

In our view, on a fair reading of his reasons, the trial judge
    concluded, in effect, that the demonstration evidence did not give rise to a
    reasonable doubt because it amounted to speculation. This was so both because
    of inherent shortcomings in the demonstration evidence and also because it had
    to be considered in the context of the totality of the Crown's case. Overall,
    it was not a reliable reflection of the time required for the appellant to get
    to the alarm keypad from the master bedroom or of the necessity of him doing so
    in any event, when considered in the context of the whole of the evidence.

[9]

As noted by the trial judge, some of the inherent shortcomings in the
    demonstration evidence were that the officer who performed the demonstration
    did not testify  he was an able-bodied person and there was no evidence as to
    how familiar he was with wheel chairs, stair lifts or the alarm system.

[10]

Further,
    there was uncertainty about whether the alarm could be turned off remotely by a
    fob.

[11]

Moreover,
    the trial judge had already recited evidence leading him to conclude the
    Crown's case that the appellant was the shooter was overwhelming. For example,
    the appellant had gunshot residue on both hands; the gun was faulty and it took
    both hands to fire it; the appellant's DNA was found on the gun and on the
    bullets in the gun; and there was no indication of a robbery or home invasion.

[12]

Duty
    counsel did not suggest that the trial judge's finding that the appellant's
    four statements to the police were "riddled with inconsistencies and
    admitted lies and  simply not believable" was not reasonable.

[13]

We
    note, as well, that there was evidence at trial showing the appellant could crawl
    and also undermining his claim of disability.

[14]

In
    all the circumstances, we see no realistic possibility that watching the video
    again would have assuaged the trial judge's concerns about the weight of the
    demonstration evidence.

[15]

On
    his own behalf the appellant argued that: i) it is apparent from photographic
    evidence that a police officer mis-described the location of his wheel chair
    near the foot of the stair lift; ii) the trial judge improperly rejected the
    possibility of cross-contamination of DNA evidence; and iii) the trial judge
    failed to consider alternate explanations for the gunshot residue found on his
    (the appellant's) hands. Based on our review of the record, none of these
    arguments is borne out by the evidence or the trial judge's reasons.

[16]

As
    for his sentence appeal, the appellant failed to identify any error in the
    trial judge's reasons concerning the parole ineligibility period. We see no
    basis on which to interfere.

[17]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted but the
    sentence appeal is dismissed.