SUPREME COURT OF Nova Scotia
Citation: R. v. Sylliboy, 2022 NSSC 59
Date: 20220224
Docket: CRT 492051
Registry: Truro
Between:
Her Majesty the Queen
v.
Kevin Brian Sylliboy
Defendant
DECISION
| Judge: |
The Honourable Justice Jeffrey R. Hunt |
| Heard: |
September 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 27, 28, 29 October 4, 5, 6, 12, 13, 2021, in Truro, Nova Scotia
|
| Decision: |
February 24, 2022 |
|
|
|
| Counsel: |
Patrick Young/Jody McNeill, Crown Counsel
Zeb Brown, Defence Counsel |
By the Court:
[1] James Blair was shot and killed in the early morning hours of April 1, 2018. He died from a single gunshot wound to the upper torso. This occurred on the front porch of the home at 905 Willow Street, Millbrook, Nova Scotia. Kevin Sylliboy stands charged with second degree murder in his death.
[2] Although a number of individuals were in the immediate vicinity of the shooting, the evidence presented was that no single witness saw everything that occurred. Some describe seeing more, some less. Witnesses gave evidence of events right up to the pulling of the trigger and immediately after Mr. Blair was struck.
[3] The nature of the evidence means the matter will be weighed as a circumstantial case. The legal standard in such a case is that the evidence, when considered as a whole, must lead to the conclusion that Mr. Sylliboy shot James Blair and there exist no other reasonably available inferences from the evidence.
[4] There are a number of credibility and reliability issues arising from the various witnesses. Even where there is reliable and credible evidence to draw from, it is still necessary to determine beyond a reasonable doubt that the only available inference is that Kevin Sylliboy shot James Blair, in doing so he did not act in self-defence, and that the Crown has proven the required mental element for murder. Kevin Sylliboy carries no burden of proof. This entirely rests with the Crown.
[5] Central to the weighing process will be the evidence of Grace Scott. Her account was that she was with the Accused both before and after the shooting. Shortly before the shooting there was a verbal confrontation involving Sylliboy and Blair at a different location within Millbrook.
[6] Grace Scott says that following this encounter she then drove the Accused to a home where the Accused had been staying. He entered that residence and quickly returned with a duffle bag containing a firearm. He appeared to her to be talking or texting with others on his phone. He gave her direction on what turns to make and where to drive. She went to 905 Willow and was directed into the driveway.
[7] I will explore later the accounts of those present at the scene, both inside and outside 905 Willow. These were all individuals who knew each other well, in most cases back to childhood. This is not a stranger identification case. Witnesses here were well familiar with the Accused. The common elements are that various witnesses saw Kevin Sylliboy (or in one account a silhouetted figure) with a firearm. He was in front of the home at 905 Willow calling out James Blair. He exited the building and there was an almost immediate gunshot (or in one account more than one shot). Unquestionably James Blair was struck by a single bullet while he stood on the porch. The Crown says the Court has the benefit of forensic evidence in addition to the witness accounts.
[8] Grace Scott’s evidence was that, after the shooting, Kevin Sylliboy immediately re-entered her vehicle with the firearm. She drove quickly away. Mr. Sylliboy stated that he had killed a man, as well as making other comments.
[9] As she is a potential accessory there are reasons to be very careful with the evidence of Grace Scott. Has she tailored her testimony as a means of limiting her own jeopardy? Did she tell the police what they wanted to hear in order to make an immunity deal? Where such risks exist, there are additional legal safeguards to be applied in the analysis of her evidence.
[10] As stated above, the first issue is whether the only reasonably available conclusion is that Kevin Sylliboy shot James Blair. If the answer to this is yes, the Court moves to the second question. Has the Crown proven beyond any reasonable doubt that Mr. Sylliboy did not act in self-defence?
[11] This is the Crown’s burden to bear and requires the application of the statutory test for self-defence as interpreted by case law, including new Supreme Court of Canada guidance on this issue.
[12] Finally, if self-defence does not apply, then the remaining question becomes has the Crown further proven beyond a reasonable doubt that Kevin Sylliboy had the required state of mind for second degree murder. It must be proved he either meant to kill James Blair or intended to cause him bodily harm which he knew was likely to kill him and was reckless as to whether death ensued.
[13] A conviction for second degree murder can occur only where all three of these questions are resolved in favour of the Crown. Other outcomes ranging from outright acquittal to a finding of manslaughter are possible depending on how the various questions are resolved.
[14] The fundamental protection in every criminal trial is the presumption of innocence. This is the primary and irreducible foundation of our criminal justice system. It has to be appreciated that this principle is not a slogan to be quoted and then forgotten. It must remain at the center of the entire analysis to be conducted.
[15] Running together with this presumption of innocence is the standard of proof against which the Crown evidence must be measured. To secure a conviction in a criminal case, the Crown must establish each essential element of the offence to the point of proof beyond a reasonable doubt.
[16] This standard has rightly been called an exacting one. It is a standard far higher than the civil threshold of proof, being a balance of probabilities. The law recognizes various standards of proof depending on the nature of the proceeding. The criminal standard towers above those other lesser standards.
[17] The Nova Scotia Court of Appeal and Supreme Court of Canada have expressed the standard in these terms:
- A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
- Even if it is believed the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances the Court must give the benefit of the doubt to the accused and acquit because the Crown has failed to prove the guilt of the accused beyond a reasonable doubt.
- On the other hand, it must be remembered that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
- In short, if based on the evidence before the Court, the trier of fact is sure that the accused committed the offence, then they should convict because this demonstrates the trier is satisfied of his guilt beyond a reasonable doubt.
- It has to be remembered that the burden of proof never shifts to the defendant. This is irrespective of whether the defendant himself gives evidence.
[19] With respect to my overview of the evidence, I note that I have not summarized in these reasons the testimony of every witness. For instance, a number of police witnesses were called on an issue of post-offence conduct, a matter which the Crown ultimately opted not to pursue. While my summary of the evidence has focused on central issues of relevance and elements necessary to put the Court’s conclusions in context, I have considered and weighed all the testimony, and each of the exhibits, in reaching my conclusions.
Second-Degree Murder
[20] The Accused faces a single count Indictment alleging second degree murder. In order to succeed, the Crown must prove beyond a reasonable doubt that Kevin Sylliboy:
a. Caused James Blair's death;
b. That it was an unlawful killing (i.e.. did not occur in self-defence); and
c. That Mr. Sylliboy had the state of mind required for murder in that he either:
i. intended to cause his death, or
ii. meant to cause him bodily harm that he knew would likely cause his death and was reckless as to whether or not death ensued.
[21] Each of these questions must be addressed separately. Self-defence is not considered until the second stage. Issues of intent are weighed at the third.
[22] The Defence position is that the Crown has failed to meet its burden on every question. This includes the foundational first issue of who fired the fatal shot.
Question One
Has the Crown proven Kevin Sylliboy was the shooter?
[23] Has the Crown proved that the only reasonable inference from the evidence is that Kevin Sylliboy was the shooter at 905 Willow?
[24] Shortly before the shooting, which took place at approximately 3:30 am, James Blair, Kevin Sylliboy and others were at 14 Brooks Lane, the home of the Accused’s aunt. In the front yard of that residence a verbal altercation between Sylliboy and Blair took place which did not appear unduly serious at first.
[25] As that encounter was likely winding down, [........................] became involved and made an allegation that James Blair had sexually assaulted her in the past. The Crown theory is that this escalated matters and precipitated the events that followed.
[26] Defence counsel in submissions argued there is no evidence that the Defendant even believed the allegation. It is correct that witnesses said Mr. Sylliboy appeared agitated both before and after the interjection from [......................].
[27] Central to the question of whether Kevin Sylliboy was the shooter at 905 Willow is the testimony of Grace Scott. I will set out a summary of her evidence followed by a discussion of the additional care that must be brought to its weighing.
Evidence of Grace Scott
[28] Grace Scott was a friend of the Accused. She had been socializing and spending time with him for a number of months in what she described as a non-romantic relationship. She was also acquainted with many of the others present at 14 Brooks and 905 Willow.
[29] Ms. Scott was not drinking or consuming drugs on the evening of March 31 or morning of April 1, 2018. The evidence was that she was acting as something of a designated driver for various of the witnesses.
[30] Grace Scott testified as to the negative encounter between Sylliboy and Blair at 14 Brooks Lane. After that encounter, and attempting to play the peacemaker, she had Sylliboy drive away with her in her vehicle. He was upset and agitated. He directed her to the home where he had been staying for some days. She sat in the vehicle while he quickly entered the house and returned with what she described as a duffel bag. She did not recall exactly what it looked like but believed there were red and grey in the colours.
[31] She described the Defendant as upset and teary eyed. She testified that he reached into the duffel bag and brought out a gun. She was scared. She was trying not to look at the weapon, but it was resting between his legs and up against his left leg. She described it as black in colour and large. She said she personally did not know much about guns.
[32] Under questioning she said she believed she had seen this firearm before. She said it was when Kevin Sylliboy had shown it to her within the previous weeks. Another witness gave similar evidence about the weapon having been displayed to them in the weeks prior by Mr. Sylliboy. The Crown is clear that this evidence was not introduced for any reason related to bad character and the Court will not employ it for such reasoning.
[33] She was asked what happened after the weapon was removed from the bag. She testified that the Defendant began to tell her where to drive. She described the route she remembers taking. She stated that he told her to slow down a couple of times. He said he was looking for someone. She reported him using words to the effect “...he’s around here, I’m going to find him”.
[34] She described them arriving at 905 Willow Street, Millbrook, the home of Mitchell O’Toole and Mallory Mitchell. At first, she was relieved because earlier in the night Mr. Sylliboy had said he was going to a friend’s house, and she believed this could be the house. He directed her to pull into the driveway. She testified that she observed what she believed to be him texting and on the phone with someone. She said she heard him say, “I know he’s in there. Send him the fuck out”.
[35] She said she was fearing the worst and asked him about leaving, but Mr. Sylliboy said they were not leaving. She described seeing Mitchell O’Toole come out of the building. Her belief was that at one point Mr. O’Toole may have approached the vehicle. This may be incorrect as this does not accord with the recollection of other witnesses. She did not appear to have great recall of the movements of everyone at the scene.
[36] She described Mr. Sylliboy as first leaning out of the vehicle, then getting partly and completely out of the vehicle. He had the weapon with him. Her account in part was as follows:
A: .... Kevin stood up and started in a raised voice ... it wasn't ... I don't know if I would call it yelling but it was, like, angry, talking to him.
And then at that point, that's when I just started going with, Please Jesus, please Jesus, please Jesus.
And I think he said to send him out, but I don't remember. And then I saw their bodies come out the door. And I don't know, maybe it was before that. I don't know. I just remember hearing a big bang.
And then he was back in my car and he's like, “Don't rat” to everyone. And then he told me to drive so I went to drive. And then he told me to drive the other way. So, I turned around and then he told me to stop fucking shaking. I guess I was just, like, almost convulsing. Like I was shaking so bad. So, I stopped.
And then he told me I had to take him to his boys. So, he had me pull into one place, and I dropped people off there a couple of times, but I don't even ... I don't know who lived there. And we turned off my car and no one was there.
So, then he told me I was taking him somewhere else. I don't even know where I took him. Like, I just remembered it was over a bridge and it was behind the Power Center. And there was a long driveway and there was vehicles in the driveway.
And during that drive he was, like, I fucking killed him; I murdered a man. I was like, no, you didn't. It's Easter. People don't die on Easter.
And he's like, I fucking ... I shot him. Fuck it, I'm just going to get in a shoot-out with the cops, and I totally thought he would.
[37] Ms. Scott agreed in cross examination that, from where she was, she only saw indistinct figures on the porch. In cross examination she accepted it was not a well-lit scene. She said she remembered a light but could not say if it was a porch light or another source of light such as light coming from inside the home. In cross examination she accepted that she did not believe her headlights were on when she was parked in the driveway.
Additional Witnesses at 905 Willow
[38] The Court was also provided with accounts of the scene given by Emily Cope, Mitchell O’Toole, and Mallory Mitchell.
[39] Emily Cope testified for the Crown. She acknowledged she was intoxicated during these events. Like many of the witnesses she knew both the deceased and the accused well. She had known Kevin Sylliboy since her childhood. She spent the hours prior to his death with James Blair, both at 14 Brooks and 905 Willow.
[40] Ms. Cope witnessed the encounter at 14 Brooks Lane and provided her account of those events. More materially, she testified to later seeing Kevin Sylliboy arrive at 905 Willow in Grace Scott’s vehicle. He appeared to be angry. She described him as appearing like a man on a mission. She saw him out of the vehicle with the gun. She described his actions with the weapon as “jerking motions”, and then the gun being fired and James Blair falling to the porch.
[41] Ms. Cope was clearly traumatized by what she witnessed. Despite this she was attempting to provide full and open evidence to the Court. She did not appear to enjoy giving evidence which might be seen as unfavourable to the Accused. Notwithstanding this, she did so in a straightforward manner. Her degree of intoxication does not lead me to have any doubt about the reliability of the central components of her evidence as it related to the Accused and his use of the weapon at 905 Willow.
[42] Mitchell O’Toole testified for the Crown. He and his partner Mallory Mitchell lived at 905 Willow. He testified that Emily Cope and James Sylliboy arrived at his home on April 1, 2018, around 3 am. He testified they were invited inside, and they spent some time in the home before he became aware there was a vehicle in the driveway with a man at the passenger door shouting words to effect “...send him out or get him out here...”.
[43] His questioning in direct continued as follows:
Q. Okay. And where is James Blair?
A. Inside.
Q. Okay. What happens at that point?
A. Ahh, I think he just walked right by me and went out onto the step.
Q. You're talking about Mr. Blair?
A. James, yeah.
Q. Okay. How far out onto the ... and again when you say "step", what do you mean by that?
A. The porch, the deck.
Q. Okay. And how far out ...
A. So, he would have went right out to the railing.
Q. Okay, then what happened?
A. He turned around and come back ... he turned around to run back inside, and I heard a loud noise, and he got shot in the back and fell on the ground.
Q. Are you able to describe the noise other than loud? Can you ...
A. It was a loud gunshot noise.
....
Q. As Mr. Blair walked out onto the porch, can you say anything about
the male outside? What if anything did he do?
A. Ahh, they moved very fastly from the car to the middle of the yard and then ... well, it was really dark at that time. I could see, like, a dark figure moving across the yard, and then it kind of looked like he raised a gun and shot him.
Q. When you say, "looked like he raised a gun", are you able to demonstrate for the Court what motion if any from that person you observed?
A. It just looked like his arms went up like this and he was holding something.
Q. Okay. Now just for the record, you're holding your ... you're holding both your hands in front of your body.
A. Yeah.
Q. Okay. And then what happened at that point?
A. I tried to give him CPR.
[44] Mitchell O’Toole was asked if he could identify the male. He said it was dark and he could only see a dark or silhouetted figure.
[45] My impression of Mitchell O’Toole was that he was not happy to be involved in this matter. He has known Kevin Sylliboy for a long time. He seemed to want to strictly limit what he was saying to the undeniable basics as a means of limiting his involvement in the case. Essentially to facts that seemed beyond question. James Blair was at his home with Emily Cope. A vehicle arrived. A silhouetted figure had a gun, raised, and fired it, striking James Blair. The person quickly re-entered the vehicle and drove away.
[46] Mallory Mitchell was Mitchell O’Toole’s partner and also resided at 905 Willow.
[47] She testified that she and Mitchell were awake and beginning to prepare for their children’s Easter morning when they heard people outside the home. She said Mitchell went to check on this, it turned out to be Emily Cope and James Blair passing by.
[48] They were invited in. Her own view was that both Emily and James were a little intoxicated. Emily mentioned wanting to use the phone. She apologized for it being so late.
[49] Under questioning Ms. Mitchell testified that, as matters unfolded, Mitchell, James and she were in her bedroom speaking at one point while Emily was out of the room.
[50] She related a conversation with James Blair. The contents of the exchange, and specifically comments made by James Blair, were the subject of an objection from the Defence. I will relate here what Mallory Mitchell testified was said. Later in these reasons, I will share my analysis with respect to whether or not these statements will be admitted for the limited purpose sought by the Crown.
[51] Ms. Mitchell testified that, as she was with James Blair in her home, she began to receive repeated phone calls to her cell. The caller ID indicated they were coming from “Kevin”. Her evidence was that the only Kevin she had saved in her phone was Kevin Sylliboy. She silenced the ringer and did not pick up these calls. Her recollection is that multiple calls were coming in one after the other. She showed others what was occurring. Eventually someone else, possibly Mitchell O’Toole, did answer one of the calls. Her evidence was that she did not know what the conversation was. All these calls took place while she, James Blair and Mitchell O’Toole were speaking in her bedroom.
[52] At one point she and James Blair were alone and talking about what was happening. She stated that Blair related that he had had an argument with Kevin and that he was wanting to face him. She related that her advice was not to do that. Her evidence was that this advice by driven, at least in part, by the fact that she had seen Kevin Sylliboy in her home weeks prior with a firearm. I will deal later in these reasons with how I intend to address this evidence of Blair’s remarks which is referred to as ante-mortem hearsay.
[53] In her continued testimony Ms. Mitchell was asked to describe what further happened that evening. She stated that, at one point while she and James Blair continued to speak in the bedroom, Emily Cope was heading outside. She heard her husband let Emily out, which he had to do as the door was locked up high in order to prevent her young children from touching it.
[54] With Emily heading outside, Ms. Mitchell says she heard shouting from the driveway. She testified that she recognized the voice “...in a sense...” and it was Kevin and that he was shouting over and over to “...send him out”. She believed that James and Emily had perhaps been at her home for five or ten minutes when she first heard this shouting.
[55] As an aside, I want to note that I am alive to the considerations respecting voice recognition evidence as discussed in R. v. Downey, 2018 NSCA 33. I am satisfied that the level of familiarity between Ms. Mitchell and the Accused is well beyond what was the case in Downey. Additionally, in that case the identification evidence of the witness there stood more on its own, in distinction to the circumstance here.
[56] Returning to her testimony, her account was that she next told James Blair that she believed Kevin was outside. Her recollection was that Blair proceeded to immediately head outside onto the porch. Later in cross examination she added another significant element to this account involving Blair picking up a kitchen knife. In direct however this was not mentioned, and she went on to relate her recollection that when James Blair went outside, she reacted by beginning to gather her children into a back bedroom in case there was trouble.
[57] In direct she went on to describe almost immediately encountering Emily Cope in the kitchen. Cope told her she was looking for a phone to call police. She gave Cope her cell phone. Cope went outside to call. She said that it was after this point that she learned from her partner, Mitchell O’Toole, that James Blair had been shot. She testified that by the time she looked out she saw her husband giving CPR to James Blair. She described the scene as she saw it at that time.
[58] Mallory Mitchell was extensively cross examined. Defence counsel had her confirm that she and her husband would have discussed the events of that early morning on a number of occasions. He also had her concede that her memory for events, such as when she gave her police statement, appeared to be flawed. She also agreed that her memory of taking the children into the back room for safety reasons was mis-timed. She agreed with defence counsel that this likely happened after she heard there had been a shooting and not immediately after James Blair left her bedroom and went outside. She was also confronted with prior statements giving inconsistent accounts with respect to whether her cell phone was working or not or could still operate on Wi-fi.
[59] Also in cross examination, Mallory Mitchell, gave an account of having seen James Blair grab a kitchen knife from inside the home as he headed onto the porch of the home at 905 Willow. This had not been mentioned by her in either her police statement or in her evidence at the Preliminary Inquiry. I will return later in these reasons to a discussion of this portion of her evidence and conclusions reached by the Court.
[60] With respect to the evidence of the scene at 905 Willow, the witness accounts do not mesh perfectly. The details of who moved and stood where at various moments are not perfectly aligned. The sequencing of each account was slightly different. Each of them testified separately of the shock and fright they experienced. Emily Cope was highly intoxicated. Each witness acknowledged that the shock and passage of time impacted the detail of their memory and recall. None of this was surprising.
Context of the evidence of Grace Scott
[61] The testimony of Grace Scott requires specific consideration, as does the context of her evidence. She was at serious risk of criminal exposure herself in relation to possible offences of accessory after the fact in this matter. By her own admission, if she is to be believed, she transported the accused away from the scene of the shooting. She hid the weapon in her shed for some time. According to her own evidence, at no time did she call the police after participating in these events. As a result of this involvement, she acknowledged that she was investigated as an accessory after the fact and received immunity.
[62] The Defence argues that she is someone who has incentive to point the finger at Kevin Sylliboy in an effort to court favour with the police and Crown. There is no question that Grace Scott stood in serious risk of prosecution in relation to her actions and involvement in this matter.
[63] After having heard the submissions of the parties, I determined that the applicable case law does demand the exercise of additional caution in the weighing of her evidence. I will explain why I have reached this conclusion.
Grace Scott as a Vetrovec Witness
[64] I have concluded that, if this were a jury trial, I would have been required to give the jury what is known as a Vetrovec warning with respect to her evidence (see R. v. Vetrovec, [1982] 1 S.C.R. 811).
[65] In the case of R. v. Campbell (2002), 1 C.R. (6th) 343 the Nova Scotia Court of Appeal held that a Vetrovec witness may be one who may be suspected of providing evidence for an ulterior motive. The motive may include, but is not limited to:
i. diverting suspicion from oneself;
ii. gaining advantages, such as immunity from prosecution from the current or a different offence; or,
iii. monetary gain.
[66] The specific danger is that, in order to limit their own exposure to criminal prosecution, the witness will lie about the involvement of another accused in order to curry favour with the authorities. This is what the Defence in this matter accuse Ms. Scott of doing. They submit she falsely told the police what they wanted to hear about Kevin Sylliboy in order to escape her own charges in relation to the shooting.
[67] It is true that Grace Scott was investigated and stood in serious danger of being prosecuted as an accessory after the fact. This was acknowledged by her. She testified that, as long as she told the truth, she understood the authorities would not pursue the charges against her. The Defence says she did not tell the truth. Rather she gave the police what they actually wanted, which was false evidence against Kevin Sylliboy.
[68] My conclusion is that the circumstances here warrant the bringing of extra caution to the weighing of the evidence of Grace Scott. Her evidence is central to the prosecution case, and she was or is a person at risk of prosecution in relation to this matter.
[69] The finding that someone is a Vetrovec witness does not mean their evidence cannot be accepted. It does mean, however, that a measure of caution is required. The starting point for reliability and trustworthiness is that expressed in Farnya v. Chorny, [1952] 2 D.L.R. 354 (BCCA) as augmented with other evidence which tends to be confirmatory of the evidence. It has been described as the search for “something in the nature of confirmatory evidence”.
[70] What guidance has been provided by appellate courts on what may tend to be confirmatory evidence? The Nova Scotia Court of Appeal said the following in Campbell, supra:
16 ...[C]confirmatory evidence need not directly implicate the accused in the crime but must lend support to the witness’s overall testimony or the material aspects thereof.
[71] In R. v. Lee (1998), 112 B.C.A.C. 202 (B.C. C.A.) at para. 16, the British Columbia Court of Appeal approved the following charge to a jury in a trial involving evidence of three accomplices:
Because these witnesses are regarded as being accomplices and as persons of unsavoury character you should examine all of the other evidence in the case and look for evidence that supports or confirms their testimony. In other words, you should look for evidence that makes you more confident that their testimony is true. You should look for examples of independent evidence coming from other sources that is capable of supporting or confirming the evidence of these witness. I'm not suggesting that the whole of their evidence should be confirmed, but you should look to see whether there are important parts of it that are confirmed which makes you more confident that their testimony is true. It is for you to decide whether or not there is evidence that supports or confirms these witnesses' evidence in a material particular.
[72] I have assessed how her testimony fits within the trial evidence as a whole. I have found many elements that corroborate her evidence and tend to lend support to its reliability.
[73] Her description of the events at 14 Brooks Lane aligned with the evidence of witnesses including Emily Cope, Louise Hepworth and others. The same was the case for the events at 905 Willow.
[74] Her evidence was supported in material ways by other evidence. This includes:
• Her description of when and how she picked up the accused in her car is corroborated by Tracy Sylliboy.
• The core evidence of Grace Scott and Emily Cope with respect to the Accused’s possession and firing of the weapon. Her evidence is also consistent with Mitchell O’Toole account of a gunman arriving and shooting James Blair in the circumstances he describes.
• Her testimony that the Accused retrieved a red duffle bag that contained a rifle is corroborated by the evidence that those items were seized from the bag which included the accused’s personal effects, and his DNA which was found to be on the gun and on the black hooded sweatshirt in the bag.
• Sage and Tracy Sylliboy’s testimony regarding the accused’s possession of the bag and the firearm also corroborated Grace’s evidence.
• Her evidence that the accused was at the scene at the time of the shooting is corroborated by Emily Cope who testified she saw him there and Mallory Mitchell who identified his voice.
• Her testimony that the accused made phone calls once in the driveway of 905 Willow is corroborated by Mallory Mitchell.
• The testimony of where she put the firearm is corroborated by police witnesses who executed a search warrant for her shed at 13A Barrett Lane in Truro and the photographic evidence.
• Her testimony that the accused was the only passenger in her vehicle at the scene of the crime is corroborated by Emily Cope. The accused was her only passenger when she left Louise’s residence. That is corroborated by Tracy Sylliboy.
• And there are other elements of consistency as well touched upon in other parts of these reasons.
[75] The evidence of Emily Cope and Grace Scott support each other in other important ways including Kevin Sylliboy’s apparent desire to confront the victim and his use of the weapon.
[76] The Crown points to elements of the forensic evidence which they submit is capable of further supporting the evidence of Grace Scott and the inference that Sylliboy was the shooter. That evidence will be summarized separately in these reasons.
[77] There were obviously no other witnesses to the discussion in her vehicle following the shooting. The case law does not require that every single element of a Vetrovec witness testimony be corroborated. The trier of fact has to be able to draw on other evidence that allows them to accept that the witness is offering reliable and credible evidence not tainted by the concerns that required the Vetrovec caution.
[78] I have weighed the evidence of Grace Scott. She was open in acknowledging that the stress of the events and the passage of time did impact her ability to recall perfectly. However, I do not find she was contradicted on any central point that point that undermined her credibility. In the rush and stress of events I would have been surprised if she had possessed recall of every detail. She acknowledged where her memory was impacted by shock or fear.
[79] She did not approach her testimony with the Defence any different then when she answered the Crown’s questions. She did not embellish her evidence, but this can not be used as a makeweight to enhance her credibility. I concluded that her evidence accorded with common sense and with other evidence in the matter which I found to be reliable.
[80] In summary, I found her to be credible and reliable. I accept her evidence with respect to her observations of the actions and comments of the Accused. I believe I was seeing the truthful evidence of someone testifying as to the events of one of the worst days of their life.
Forensic Evidence
[81] The Crown suggests that independent confirmation on issues such as the Accused’s handling and firing of the weapon can also be drawn from the forensic evidence. A swab taken from the scope of the rifle was sent to the National Forensic Laboratory Services for forensic DNA analysis. The DNA profile generated from that swab was found to match a blood sample taken from Kevin Sylliboy following his arrest pursuant to a DNA warrant, with a mathematical probability in the order of 1 in 50 quintillion. In cross examination it was accepted that the profiling data was not as complete for persons of aboriginal descent but that the impact would be modest given the magnitude of the probability. The probability would remain statistically overwhelming although not the full 1 in 50 quintillion.
[82] The R.C.M.P. located and seized a single spent shell casing from the front lawn of the residence at 905 Willow Street. They also located and seized the fired bullet which killed the deceased.
[83] The firearm seized from the Accused’s duffle bag and its attachments were sent to the Firearms and Toolmark Identification Section of the National Forensic Laboratory for forensic analysis. Greg Williams was the firearms expert who examined the weapon. The weapon was exhibited. It is approximately 40 inches in length. He concluded it was a Russian-made Simonov model SKS 1945 semi-automatic rifle. He test-fired it under controlled conditions to determine its mechanical condition and susceptibility to accidental discharge.
[84] Mr. Williams also determined that the expended cartridge found on the front lawn of 905 Willow Street was consistent with having been fired from the Simonov rifle. He also subjected the firearm to forensic tests to determine its trigger-pull weight and whether it was susceptible to shock discharge or had a light trigger pull. Mr. Williams concluded the firearm was not susceptible to shock discharge and had a normal trigger-pull weight. He was examined and cross examined at some length on these points.
[85] Swabs of the Accused’s clothing, hands, and face were also seized following his arrest to determine the presence of gunshot residue. The sampling was carried out approximately six hours after the alleged events at 905 Willow. Those samples were sent to the Trace Evidence Services Division of the National Forensic Laboratory for analysis. Program Forensic Specialist Dr. Nigel Hearns concluded that particles of gunshot residue were found on samples taken from the hand and face of the Accused. As was the case in R. v. Dingwall, 2017 BCSC 1457, there were a relatively low number of particles. The evidence was that such low particle numbers were not unusual.
[86] His stated opinion was that the Accused had fired a firearm, or was in proximity to a firearm being discharged, or was in contact with another source of GSR, such as the surface of a firearm.
[87] Effective cross examination of the expert had him accept that the origin of gun shot residue can be transference from other sources such as being in proximity to firearms from arresting officers, transporting vehicles, holding cells or other sources having contact with fired weapons or those who handled them.
[88] I found the evidence of Dr. Hearns to be fair and of assistance to the Court however it is far from conclusive on its own. This is not a case that can be resolved on the forensic evidence. I accept it does have a role to play in supporting the believability and reliability of the evidence of Grace Scott as it relates to her account of the Accused’s use of the firearm.
Comments of Deceased to Mallory Mitchell
[89] The Crown argues there is additional evidence which supports the inference that Kevin Sylliboy was the shooter. This is in the form of statements allegedly made by James Blair to Mallory Mitchell in the minutes before his death. Such declarations are referred to as ‘ante-mortem hearsay’. I will set out the statements the Crown seeks to use followed by the legal test against which admission is weighed.
[90] Mallory Mitchell testified that after James Blair and Emily Cope arrived at 905 Willow she participated in a discussion with Blair. In that exchange he related that he had earlier had a confrontation with Kevin Sylliboy and “...he wanted to face him”.
[91] The Crown submits the declarations support the inference that James Blair was in fear of the Accused and additionally can be used as evidence that Sylliboy was the individual who arrived shortly thereafter in front of the house demanding that Blair be sent out.
[92] The Defence opposes this use of the remarks. It argues that while the use of ante-mortem hearsay is permissible in some circumstances, the facts here do not satisfy the rigorous legal test that must be applied.
[93] Justice Watt addresses the issue in his text Watt’s Manual of Criminal Evidence. He states as follows:
27.07
....
Declarations of Mental State to Prove Motive
R. v. Griffin [2009 SCC 28] – The mental state of a deceased, as revealed by ante-mortem hearsay statements to others, may be relevant to establish Defendant’s motive to kill the declarant. Evidence of motive is relevant and admissible, especially where the evidence on the issues of identity and intention is primarily circumstantial.
[94] The necessary analysis requires the consideration of two possible exceptions to the hearsay rule:
i. the state of mind or present intention exception to hearsay as described in R. v. Smith, 1992 CarswellOnt 103 (S.C.C.), and R. v. Starr, [2000] 2 S.C.R. 144; and in the alternative,
ii. the principled exception to hearsay as described in R. v. Khelawon, [2006] 2 S.C.R. 787.
[95] In R. v. Griffin, 2009 SCC 28, the deceased victim feared for his life because of a debt owing that he could not pay. He told his girlfriend that “...if anything happens to me, it’s your cousin’s family”. The girlfriend knew he was referring to Griffin. Subsequently the victim was shot dead. One issue at trial became the permissible use of this statement.
[96] The recent Nova Scotia Supreme Court decisions of R. v. Butcher, 2018 NSSC 74 and R. v. Sparks and Ritch, 2020 NSSC 116 discuss Griffin and other relevant caselaw. I adopt their treatment of the law including the caution that a receiving Court has to carefully weigh the probative value of the proposed evidence against its potential prejudicial effect on the reasoning process.
[97] In R. v. Griffin, supra, Charron, J. reviewed the state of mind exception to the hearsay rule:
[59] In the case before us, however, the statement at issue was not admitted to prove the state of mind or intentions of a third party. No one questioned at trial, or in the court below, that the inference that Poirier feared Griffin could be drawn from the former's statement to Williams. The statement was tendered and admitted for the truth of the fact that Poirier himself feared Griffin, a purpose that does not exceed the scope of the "state of mind" exception to the hearsay rule. As this Court stated in Starr, declarations of present state of mind are admissible under the traditional exception to the hearsay rule where the declarant's state of mind is relevant and the statement is made in a natural manner and not under circumstances of suspicion (para. 168). In the present case, there was no argument that the statement was made under circumstances of suspicion. Poirier's fear of Griffin was a relevant fact — it was relevant to motive and, in turn to the issue of identification. Although a declarant's hearsay statement cannot constitute proof of a third party's state of mind, this does not mean that the declarant's state of mind can have no bearing on other issues in the case. I will explain.
[60] As stated earlier, the sole issue at trial was the identity of Poirier's killer. Although Poirier's state of mind may have no direct bearing on the resolution of the identity of his murderer, it is well established that a deceased's mental state may be relevant to the question of an accused's motive. As Doherty J. explained in the oft approved judgment in P. (R.), at p. 339:
... the deceased's mental state may bear no direct relevance to the ultimate issue of identification but it will none the less be relevant to that issue if it is relevant to another fact (e.g., motive) which is directly relevant to the ultimate issue of identification.
In turn, that evidence of motive is relevant and admissible particularly where, on the issues of identity and intention, the evidence is purely circumstantial, is equally well established at law: Lewis v. The Queen, [1979] 2 S.C.R. 821, at pp. 834-38.
[61] The state of the relationship between a deceased and an accused in the time period leading up to the former's murder has been recognized as probative of the issue of motive. For example, in R. v. Assoun, 2006 NSCA 47, 244 N.S.R. (2d) 96, identity was the crucial issue at trial. The trial judge admitted statements made by the deceased expressing fear of the accused on the basis that such statements were probative of the issues of "malice, motive, [and] state of mind" (para. 104) which in turn were relevant to identity. The Nova Scotia Court of Appeal agreed (at para. 133):
[The deceased's] state of mind and [the accused's] state of mind are probative of the relationship between them at the time of [the deceased's] murder. Therefore, they are probative of motive, which is relevant to identity.
[98] The connection between the deceased’s state of mind and permissible inferences respecting motive were explored by the Ontario Court of Appeal in R. v. Foreman (2002), 6 C.R. (6th) 201. In upholding the trial judge's admission of statements made by the deceased shortly before her death in which she expressed fear of the accused, the court stated as follows:
[30] Motive refers to an accused's state of mind.... [T]he deceased's state of mind was one link in a chain of reasoning which could lead to a finding that the [accused] had a motive to kill [the deceased]. In that way, evidence of [the deceased's] state of mind had an indirect connection to the appellant's state of mind.
[99] Finally, Justice Watt summarized the law and touched on the necessity of a cost-benefit analysis in R. v. Carroll, 2014 ONCA 2:
[104] A deceased's mental state may be relevant to an accused's motive to commit an offence: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 60; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 98. In a similar way, the state of the relationship between an accused and a deceased in a time leading up to the unlawful killing of the deceased may demonstrate animus and motive on the part of the accused, and thus be relevant to the identity of the deceased's killer and the state of mind that accompanied the killing: Griffin, at para. 61; Moo, at para. 98. Statements of the deceased may afford evidence of the deceased's state of mind and thus be relevant to prove a motive and animus: Griffin, at para. 61.
[105] Proof of necessity and reliability or the conditions precedent of a listed exception to the hearsay rule removes the hearsay rule as an impediment to admissibility. But it does not follow that the hearsay statements will be admitted. Trial fairness factors influence the ultimate decision on admissibility. A trial judge has a discretion to exclude otherwise admissible hearsay evidence through the application of a cost-benefit analysis: Khelawon, at para. 49; Moo, at para. 95; and R. v. Mohan, [1994] 2 S.C.R. 9, at p. 14.
[100] To begin the analysis in the present case I have to consider whether the declaration was made naturally and not under circumstances of suspicion. It appears this is the case. Mallory Mitchell’s evidence does not provide a great deal of contextual background but what we do have does not suggest an intention to deceive.
[101] There is however a concern as to what exactly is being conveyed by the victim. In Griffin the statement was neither difficult to understand nor ambiguous as to who was seen as the target of the remark. In the present case, the statement the Crown seeks to rely on can be seen as ambiguous.
[102] This was also a concern of Justice Brothers in her treatment of this issue in R. v. Sparks and Ritch, supra. At para 37 of that decision, she said the following:
37 In Griffin, the statements were neither equivocal or ambiguous. It was a statement made by the deceased to an individual who knew him well, his girlfriend. It was direct.
38 The statements in the other cases are not ambiguous, they are assertions which describe clearly a state of mind. Here we have texts and utterances which do not give a clear picture of the deceased’s state of mind.
39 .... In addition, unlike in R. v. Carroll, supra. the contents of the texts and utterances did not contain sufficient detail to permit a reasoned assessment of the probative value of the utterances by the trier of fact.
Principled Exception Analysis
[103] Hearsay evidence is presumptively inadmissible. The declarant is not available to be tested as to their perception, memory, narration, and sincerity: R. v. Starr, supra.
[104] Case law has provided a detailed road map for assessing the necessity and reliability of statements such as these. I specifically adopt Justice Brothers detailed treatment of these issues in Sparks and Ritch at paragraphs 40 -48.
[105] I have weighed the declaration advanced by the Crown in this case and have similar concerns to those identified by Justice Brothers.
[106] Primary among my concerns is the ambiguous nature of the statement “...he wanted to face him”. The statement is capable of being read as either Blair wanting to face Sylliboy or vice versa. Without the possibility of contemporaneous cross examination this ambiguity is not capable of being resolved.
[107] Additional concerns arise around the issue of necessity. The first part of the declaration purports to establish that Blair was coming from a confrontation with Sylliboy. There is other evidence that speaks to the encounter at Brooks Lane. It is not necessary to introduce Blair’s statement for this purpose.
[108] I have not been able to reach the conclusion that threshold reliability and necessity have been made out. The statement sought to be admitted does not contain enough information and context to allow sufficient weighing.
Prejudicial Effect versus Probative Value
[109] The statement does contain some indication of an acrimonious relationship between Blair and Sylliboy. The status of their relationship is relevant to an issue at trial. However, the overall cumulative effect of the concerns respecting use of the declaration outweighs its probative value.
[110] The inherently ambiguous nature of the statement makes it too speculative to admit. Even if the statement had passed the necessity and reliability analysis, I would have excluded it based on the balancing exercise.
Circumstantial Evidence Analysis Respecting Question One
[111] As noted earlier in this decision, the facts in this case require the consideration of the law respecting circumstantial evidence.
[112] The Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33 gave direction on such cases:
37 When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: [citations omitted]. 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": [citation omitted]. "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.
[113] Cases applying Villaroman indicate that the question becomes whether the trier of fact, acting judicially, can reasonably be satisfied that the accused's guilt is the only reasonable conclusion available on the totality of the evidence.
[114] Circumstantial evidence does not have to totally exclude every other conceivable inference. The trier of fact must decide if any proposed alternative way of looking at the case is capable of raising any reasonable doubt. Put another way, the circumstantial evidence does not have to exclude entirely other conceivable inferences, but rather such alternatives must not raise a reasonable doubt.
[115] The Nova Scotia Court of Appeal commented recently in R. v. Roberts, 2020 NSCA 20:
25 If reasonable inferences other than guilt can be drawn from circumstantial evidence the Crown has not met the standard of proof beyond a reasonable doubt. Reasonable doubt can be logically based on the evidence or lack of evidence, must be reasonable given that evidence or lack thereof, and assessed logically in light of human experience and common sense.
[116] Case law further develops the concept of how the Court must approach the weighing of “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt. It is recognized that the line between a “plausible theory” and “speculation” is not an easy one to draw. The fundamental question is whether the circumstantial evidence, assessed in light of human experience, excludes any other reasonable alternative. Put another way, the alternative inferences sought to be drawn must be reasonable and rational in the circumstances of the matter — not merely possible.
[117] At para 42 of Villaroman, Justice Cromwell comments on this point with a reference to R. v. Dipnarine, 2014 ABCA 328. He adopts the Court’s comments as follows:
[22] Circumstantial evidence does not have to totally exclude other conceivable inferences . . .
[24] Alternative inferences must be reasonable and rational, not just possible . . .
[25] But the logic of the circumstantial evidence analysis is that if a trier of fact considers a postulated alternative interpretation of the circumstances taken as a whole to be unreasonable or irrational, the trier of fact is not bound to give effect to that alternative just because it is impossible to exclude it entirely. The law does not require such proof to absolute certainty . . .
[118] Other rational inferences need only be sufficient to raise a reasonable doubt. There is no onus on an accused to advance or develop alternative theories that may be equally rational inferences from the evidence as the theory of the Crown: R. v. Griffin, [2009] S.C.J. No. 28 at paras. 34 and 35.
[119] The direction from the Supreme Court in R. v. Villaroman is that conclusions, alternative to the guilt of the accused, need not be based on proven facts. In the past this has been the subject of confusion. Presumably for this reason Justice Cromwell, for the Court, addressed this in some detail:
35 At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts": see R. v. McIver, [1965] 2 O.R. 475 (C.A.), at p. 479, aff'd without discussion of this point [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
[120] The law as set out in Villaroman and the well-known principles enumerated by the Supreme Court of Canada in the case of R. v. W.D. (modified by necessity where an accused does not testify) operate together.
[121] As was said by the Ontario Court of Appeal in R. v. D.(B.), 2011 ONCA 51:
114 What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep.
[122] I have considered whether there are any other reasonably available hypotheticals. I have weighed whether there exists any evidence or absence of evidence that could support an inference of another shooter or weapon. Gaps in the evidence may lead to inferences other than guilt. No such gap leaves me in any reasonable doubt. No alternative explanations, with respect to the identity of the shooter, are available other than what might be termed excessively speculative or purely fanciful: see Villaroman, para 79.
[123] In his summation counsel for the Defence raised a number of questions and alternatives. As I state elsewhere in these reasons, I fully appreciate that an accused has no obligation to pose hypotheticals. When such are raised however the Court is permitted to weigh those and in doing so is not placing an evidentiary burden on the Defence which does not exist: see R. v. Mufuta, 2015 ONCA 50.
[124] The possibility that an unidentified passenger was in the back seat of the Grace Scott vehicle was raised. I dismiss this entirely. There was no evidence of a hidden passenger or of an unknown shooter. I have weighed all these alternatives and find they squarely fall within the realm of purely fanciful or unduly speculative, within the meaning of Villaroman. There is simply no reasoned approach to the evidence which leaves those alternatives open.
[125] I have assessed the available inferences logically, in light of human experience and given the exercise of common sense. There exists no reasonably available inference other than the conclusion that Kevin Sylliboy was the shooter at 905 Willow. I am not left in any reasonable doubt with respect to this question. The Crown has met its burden at this stage.
[126] The analysis must go ahead to consider the second and third questions set out above.
Question Two
Has the Crown proved the death was caused unlawfully?
[127] As was noted in R. v. Daley, 2021 ONSC 5352:
318 As for the second element, it is not always a crime to cause another person's death. It is a crime to cause the death of another person by an unlawful act, one that any reasonable person, in the circumstances, would think would likely put another person at risk of some harm or injury .... The real question in this case is whether the Crown has failed to prove this element due to failing to prove that this did not occur in circumstances of self-defence.
[128] The same situation presents itself here. The Crown in this case has argued there is no air of reality to the self-defence issue. I have considered the direction of the Supreme Court of Canada in R. v. Cinous, 2002 SCC 29. I have concluded it is appropriate to weigh the defence. The witness Mallory Mitchell provided some evidence which, if accepted, could ground a self-defence argument. Just prior to the trial Ms. Mitchell told the Crown that she saw the victim in possession of a knife and that he had carried it outside and must have dropped it.
[129] I am satisfied within the meaning of Cinous, at para 52, that the issue has “been put into play”. Determining that this is the case does not equate to deciding the substantive merits of the defence. That remains for later in the analysis when such considerations as the fact that no such item was ever seen or referred to by any other witness. Neither was it located during the police activity or search at the scene.
[130] The relevant self-defence provisions of the Criminal Code read as follows:
34(1) A person is not guilty of an offence if:
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person's role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person's response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
[131] The Supreme Court of Canada in R. v. Khill, 2021 SCC 37 has recently restated and to some extent refocused the assessment of a self-defence claim. This decision asks trial courts to approach the analysis with a new focus on what has been referred to as three conditions or inquiries derived from the statute; these being (see para 51):
(i) the catalyst;
(ii) the motive; and
(iii) the response.
[132] The Court goes on to describe in detail the required approach to each of the three inquiries.
[133] To summarize, I capture the following from paragraphs 52- 64:
Catalyst
• Did an accused believe, on reasonable grounds, that force was being used or threatened against them or another person?
• This element of self-defence considers the accused's state of mind and the perception of events that led them to act.
• The accused's actual belief must be held "on reasonable grounds".
• The accused's beliefs were assessed from the perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to the accused's belief or actions.
• The question is not therefore what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive.
Motive
• Did an accused do something for the purpose of defending or protecting themselves or another person from a use or threat of force?
• The second element of self-defence considers the accused's personal purpose in committing the act that constitutes the offence. This is a subjective inquiry which goes to the root of self-defence. If there is no defensive or protective purpose, the rationale for the defence disappears.
• The motive provision ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation.
Response
• Was an accused's conduct reasonable in the circumstances?
• The trier of fact should not be invited to simply slip into the mind of the accused. The focus must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time.
• The inquiry extends to "how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the Accused": see para 64.
• It is at this stage that we apply the mandatory statutory factors at section 34(2) CCC.
Statutory Factors
34(2)(a) - Nature of the threat
[134] I do not find that the Accused perceived a threat from James Blair. The evidence I accept is that the Accused was searching for Blair. When Sylliboy arrived at 905 Willow he was seeking to call out Blair. We cannot know what motivated Blair’s decision to go out onto the porch. Once outside, he was shot almost instantaneously.
Section 34(2)(b) - Was force imminent?
[135] I have concluded that there was no imminent risk of force being applied to the Accused. He had a number of other ways to proceed. These included the option of re-entering the vehicle he had just emerged from. He was in no danger of being confronted by the victim. The preponderance of the evidence is that Blair was in the process of pivoting away from Sylliboy and back towards the house. In answer to a question of where James Blair was facing at the time he was shot, Mitchell O’Toole who was on the porch with him stated this:
“...he was facing the road, but then he turned around to go back inside, and he got shot in the back.”
[136] The medical examiner, Dr. Erik Mont gave detailed evidence as to where the victim was struck and how the bullet travelled through the upper torso. In his evidence he described the site of entry in the upper torso as being the right back, towards the right side, with the pathway being right to left and back to front. The path of the bullet damaged many vital organs including the aorta and heart. The perception of Mr. O’Toole that the victim was shot in the back is entirely consistent with the evidence of Dr. Mont. Later in these reasons there is further discussion of how the elbow was also struck. This too is entirely consistent in the explanation provided by Dr. Mont, which I accept.
Section 34(2)(c) - Person's role in the incident
[137] I have considered the actions of Sylliboy and Blair through the events at 14 Brooks Lane and 905 Willow. The Accused was the instigator of the encounter at 905 Willow. It was a confrontation which he sought out and to which he carried a firearm.
Section 34(2)(d) - Use or threatened use of weapon
[138] It is my conclusion that James Blair did not have a weapon on him and did not threaten to use such a weapon. I simply do not believe that portion of Mallory Mitchell’s testimony. It was not something she had shared with the police at the time of the events and the giving of her statement. It was not shared at the Preliminary Inquiry. It was not raised by her until a witness preparation session just prior to trial. It was not seen or commented on by any other witness. It was not identified by the police in their search of the site. It appears in no scene photographs. A search which succeeded in identifying items as small as a missing shell casing. I do not believe the weapon simply laid there for the time described by her. I do not believe that Ms. Mitchell, who was clearly protective of her young children, would have let the knife lay there as described by her. I find she would have spoken up about it, pointed it out, or insisted it be dealt with by the police.
[139] This part of her account is not in harmony with a reasoned treatment of the balance of the evidence which I accept. Her account was implausible to me. Even her demeanour was different during this part of the evidence, but I have opted to exercise caution by not placing too much reliability on the strength of assessing demeanour evidence.
[140] The Supreme Court of Canada has offered assistance to trial judges who have concerns about witness credibility. In R. v. A.(J.), [2011] 1 S.C.R. 628 the Court asks the trier to explore whether the credibility of the testimony can be enhanced through the identification of independent supporting evidence. I have been unable to identify those sorts of outside supporting elements that might restore my faith in this component of her evidence. It is also well accepted that a trier of fact is entitled to accept all, some or none of a witness’s evidence: see R. v. Stanton, 2021 NSCA 57. I have also applied the guidance of the Nova Scotia on witness credibility issues from R. v. D.D.S., 2006 NSCA 34.
[141] This being said, her account on this issue remains as part of the overall picture which I will weigh to determine if, based on all the evidence, accepted or not, there remains any residual reasonable doubt as to self-defence and ultimately to the matter of guilt. Put another way, even though I do not find her credible on this point, it will still be considered in assessing residual reasonable doubt.
[142] Ms. Mitchell was an aboriginal witness and in weighing the explanations she offered about what and she told, or did not tell, police I have weighed factors relevant to her life experience. I have reached the conclusions I did taking into account that weighing.
Section 34(2)(e) - Physical capabilities of the parties
[143] James Blair and Kevin Sylliboy were similarly situated with respect to these factors.
Section 34(2)(f) - History of any relationship between the parties
[144] It appears that the negative issues that arose were recent. What evidence was presented with respect to their prior history did not reveal a prolonged history of threats or violence.
Section 34(2)(f.1) - Any history of interaction
[145] As canvassed in the prior element, there was not a long history of negative interaction. There had been a dispute earlier in the evening apparently aggravated by interjections from [.........................].
Section 34(2)(g) - Nature and proportionality of the response
[146] The nature of the Accused’s actions were not proportionate and involved the use of a firearm.
Section 34(2)(h) – Was act in response to a lawful use of force
[147] This was not a factor in the present case.
[149] I have weighed, purely in the alternative, how this analysis might have changed if I had accepted the evidence of Mallory Mitchell with respect to the knife. Even in such a case, the self-defence analysis would have failed the third element of the test, that of reasonableness.
[150] Having instigated the encounter while armed with a semi-automatic firearm it would have been disproportionate and not reasonable to shoot the victim rather than pursuing other available options including re-entering the vehicle which was readily accessible. In saying this I am aware there is no duty on a person to retreat before they may seek to claim self-defence: R. v. Deegan, [1979] A.J. No. 839 (C.A.).
[151] Weighing the statutory factors and analysis together and keeping in mind there is no burden of proof on the Accused, it is my conclusion that the Crown has proved beyond any reasonable doubt that the Accused did not act in self-defence. I am not left in any reasonable doubt with respect to this question.
[152] The analysis must go on to the final question before the Court.
Question Three
Has the Crown proven the required state of mind for second degree murder?
[153] The legal standard for proving intent with respect to second degree murder is not controversial.
[154] For an unlawful killing to be murder the Court must be satisfied that the Crown has proven beyond a reasonable doubt that an accused meant either to kill the victim or to cause bodily harm that the accused knew was likely to kill him and was reckless as to whether or not death ensued. A failure on the part of the Crown to meet its burden on this point may result in a finding of manslaughter.
[155] This section was considered by the Supreme Court of Canada in R. v. Nygaard, [1989] 2 S.C.R. 1074. On the issue of requisite intent, the unanimous Court commented: (pg. 1087)
The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew it was likely to result in the death of the victim. The aspect of recklessness is almost an afterthought...
[156] In R. v. Cooper, [1993] 1 S.C.R. 146, the Court expanded on the notion of recklessness at paragraph 19, as follows:
The aspect of recklessness can be considered an afterthought since to secure a conviction under this section it must be established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say, he must, of necessity, be reckless whether death ensues or not.
[157] In affirming the requisite elements of intent in s. 229(a) (ii), the Court held at paragraph 23:
The intent that must be demonstrated in order to convict under s. 212(a)(ii) [now s. 229(a)(ii)] has two aspects. There must be (a) subjective intent to cause bodily harm; (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death. It is only when those two elements of intent are established that a conviction can properly follow.
[158] The law also requires that, at some point, the actus reus, or physical element, and the mens rea, or mental element, must coincide. An act that "may be innocent or no more than careless at the outset can become criminal at a later stage when the accused acquires knowledge of the nature of the act and still refuses to change his course of action," (see Cooper at paragraph 28).
[159] Because there is rarely any direct evidence of the accused's mental state at the time of the unlawful act, the court must look at circumstantial evidence of the accused's words and conduct before, at the time of, and after the unlawful act to establish whether the accused intended to kill the victim, (see Cooper at paragraph 29).
[160] As a matter of law, a trier of fact is entitled to presume that a sane and sober person generally intends the natural and probable consequences of their actions: see R. v. Walle, 2012 SCC 41.
[161] In the decision in R. v. King, 2021 ONSC 6872, the Court said the following with respect to how a jury ought to be instructed on this issue:
[4] ...The common-sense inference instruction is a tool for the jury to use in assessing Mr. King's subjective belief at the time of the act in question. The instruction assumes that the act or acts in question have natural and probable consequences. If, as a matter of common human experience, an act commonly produces a certain result, it makes sense, absent some other explanation, to infer that the person who did the act intended the result which commonly flows from doing the act: R. v. Boone, 2019 ONCA 652 at para. 89.
[162] In the Walle case the accused had killed the victim with a single gun shot wound. The trial judge had commented on the inference that was available on the evidence. The defendant was found guilty and subsequently appealed his conviction.
[163] In upholding the conviction of Mr. Walle, the Court of Appeal (2010 ABCA 284) commented:
11 The trial judge concluded by applying the "common-sense" inference that a sane and sober person intends the reasonable consequences of his acts. Given his findings of fact, he concluded that the appellant had the intent required to convict for second degree murder when having shot and killed Mr. Shuckburgh.
12 This conclusion was based on circumstantial evidence. To convict on circumstantial evidence of intent, the rule in R. v. Hodge (1838), 168 E.R. 1136 (Eng. C.C.R.) — that the trier of fact must, before convicting on circumstantial evidence, find the circumstances were not only consistent with the accused having committed the act but also inconsistent with any other rational conclusion — does not apply to an inference of intention: see R. v. Mitchell, [1964] S.C.R. 471 (S.C.C.), at 479-480; R. v. Cooper (1977), [1978] 1 S.C.R. 860 (S.C.C.), at 874, 880-881. Therefore, the mere possibility that the appellant could have lacked intent to kill is not sufficient to have precluded the trial judge from relying on the "common-sense" inference of intent.
13 Rather, to convict on the basis of circumstantial evidence of intent, the trier of fact must simply be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. The trial judge here was so satisfied.
[164] On further appeal to the Supreme Court of Canada that court said the following in upholding the findings of both courts below:
66 After the jurors have been alerted to the pertinent evidence, they should be told that if, after considering the whole of the evidence, they believe or have a reasonable doubt that the accused did not have one or the other of the requisite intents for murder at the time the offence was committed, then they must acquit the accused of murder and return a verdict of manslaughter.
67 If, however, there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of the offence, or if the pertinent evidence does not leave the jury in a state of reasonable doubt about the accused's intent, then the jury may properly resort to the common-sense inference in deciding whether intent has been proved.
[165] It is necessary to consider the interaction between proof of manslaughter and self-defence. In R. v. Faid, [1983] 1 S.C.R. 265, the Supreme Court of Canada dealt with the situation where an accused was charged with murder, and self-defence was rejected by the jury. Speaking for the Court, Dickson J. said, at page 271:
It does not follow automatically, however, that the verdict must be murder. The accused has become responsible for a killing. He has no justification on the basis of self-defence, but unless it is shown that the killing was accompanied by the intent required under s. 212(a) of the Code [murder], it remains a killing without intent, in other words, manslaughter. If the jury considers that excessive force has been used, and has resulted in a death, they must then ask themselves whether the accused in causing the killing possessed the intent described in s. 212(a) of the Code, that is, an intent to kill or cause bodily harm likely to cause death. If they are satisfied beyond a reasonable doubt that the intent was present, they should find the accused guilty of murder. However, in the event they found no such intent existed, or had a doubt as to its existence, they should convict of manslaughter. This conviction would rest upon the fact that an unlawful killing had been committed without the intent required to make it murder under s. 212(a).
[166] Thus, notwithstanding the dismissal of the specific defence of self-defence, all the underlying facts are still relevant to the issue of mens rea and reasonable doubt under this component of the analysis.
[167] To be clear, I must acquit the Accused of murder under s. 229(c), and return a verdict of manslaughter, if there exists any reasonable doubt as to his subjective knowledge that death was likely to result in these circumstances. I have instructed myself on the essential components of manslaughter as discussed by McLaughlin, J. (as she then was) in R. v. Creighton, [1993] 3 S.C.R. 3.
[168] I have assessed the evidence as it pertains on this issue. I have weighed the testimony with respect to the Accused’s actions at 905 Willow and before. It is clear he was seeking out James Blair. He was seeking to confront him. He did so while in possession of a firearm.
[169] I have weighed the evidence around the issue of whether the placement of the magazine would impact the question of accidental discharge. The Crown advanced convincing expert evidence that the weapon was not susceptible to accidental or shock discharge. The trigger pull evidence was similarity unchallenged.
[170] When the Accused arrived at 905 Willow he remained until Blair presented himself on the porch area when, in very short order, he raised and discharged the weapon directly at him. He had a degree of familiarity with this weapon to the extent he had been displaying it to others in the time prior to the shooting. He did only shoot once, but the bullet caused great bodily harm quickly resulting in death. I am aware of the comments of Cory J.A. (as he then was) in R. v. Bains, [1985] O.J. No. 41 (Ont. C.A.), at para. 27, leave to appeal refused, [1985] S.C.C.A. No. 158 (S.C.C.):
All firearms are designed to kill. A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at close range, it is every bit as deadly as a .50 calibre machine gun. It follows that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim.
[171] I have weighed an issue that arose in evidence with respect to the insertion of the magazine into the firearm. This was canvassed between defence counsel and the firearms expert, Greg Williams. He accepted that the insertion of the magazine, followed by releasing the bolt forward, will chamber a bullet and make the firearm ready to fire.
[172] Once that occurs the only thing preventing the discharge of the firearm is the physical trigger safety and the pulling of the trigger. The evidence was that this weapon had a properly functioning trigger blocking safety. It was demonstrated in Court by the expert. It consists of a metal tab that is rotated out of the way with the finger to allow the trigger to be pulled. Both these steps would have taken place to allow the weapon to fire.
[173] I have considered whether a doubt arises as to his state of mind due to any of the issues reviewed in the evidence or on the basis of gaps in the evidence. There were no issues of intoxication presented that impacted on the issue of the ability of the Accused to formulate intent. There was simply no evidence that rose to that level.
[174] I have assessed the distance over which Mr. Sylliboy fired and the placement of Mr. Blair. The overall scene is well depicted in the photographic evidence. I have previously addressed the issue of the lighting conditions which were sufficient for him to carry out his intentions. He was in relatively close proximity to the victim. While no witness appears to have been asked to provide an estimation in feet from Accused to victim, such estimates are often challenging to evaluate in practice. Witnesses did provide estimates and benchmarks for various points and landmarks. So I have a good appreciation for the site and distances.
[175] I have assessed all the photographs and evidence from various witnesses that touch on any of these issues. Some distance estimations for benchmarks were provided in terms of vehicle lengths. Defence counsel in submissions stated the men would have been in what he called close proximity. To be fair, he was making that comment in connection with his submission around self-defence.
[176] I am fully satisfied there was sufficient light to allow Mr. Sylliboy to identify who and where Mr. Blair was. He raised the weapon at Blair, who had emerged from the home, and fired with the intention of striking him with deadly force. You do not have to be holding a weapon to the head of a victim in order to intend the consequence of pulling the trigger.
[177] I want to address the submission of the Defence that Mr. Sylliboy may have been aiming at the victim’s arm rather than at his chest. It is accurate that the medical evidence reveals the bullet passed through the elbow on the way to entering the victim’s upper torso and inflicting the fatal wound. I have cautioned myself that the Defence has no obligation to posit hypotheticals for the Court. Once they do however the Court can assess these and in doing so is not placing a burden on the Defence that does not exist in law
[178] I have weighed the evidence as it relates to this issue. My conclusion is that the shot was directed at the upper torso of the victim. The arm was in the path of the bullet, between the weapon and the upper torso and was hit. The evidence is that the victim may have been attempting to pivot away from the shooter, presumably in reaction to seeing the firearm (see evidence of Mitchell O’Toole on this point), with the arm slightly trailing behind the body. As previously noted, I accept the opinion provided by Dr. Mont as to the bullet entry point and pathway. The pathway through the body damaged many vital organs including the aorta and heart.
[179] To determine the Defendant’s state of mind, this court has considered all the evidence, including possible gaps in the evidence, and has weighed whether evidence or lack of evidence causes any reasonable doubt about whether Mr. Sylliboy knew that James Blair would likely die from any bodily harm caused.
[180] Justice David Paciocco writing in his paper Doubt about Doubt: Coping with R. v W.D., had the following to say about the application of the relevant principles:
(1) Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred;
(2) A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict;
(3) Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether the evidence is true there is a reasonable doubt and an acquittal must follow;
(4) Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and
(5) Even where the fact finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.
[181] This approach aligns with the approach discussed by the Nova Scotia Court of Appeal in R. v. J.M.M., 2012 NSCA 70 where Justice Saunders speaking for the Court at paragraph 76 noted that properly applied the W.D. criteria require at the final step a “...long, last careful look to see, on the whole of the evidence, [the trier] could properly satisfy himself that the Crown has proved the guilt of the accused.
[182] In the result, and taking the view discussed in the authorities including R. v. J.M.M., the evidence, viewed as a whole, has satisfied the Court beyond a reasonable doubt, that when the Accused pulled the trigger of the firearm, he knew the consequence of his actions would be either to cause Mr. Blair's death or to cause him grievous bodily harm which would likely cause his death, and was reckless whether death ensued or not. Intention has been proven beyond a reasonable doubt.
[183] On this basis, I find that the Crown has proven the three critical elements necessary to a conviction on the single count in the Indictment. Mr. Sylliboy discharged the firearm which shot Mr. Blair, he was not acting in self-defence and his actions have been proven to be intentional. I am left in no doubt with respect to these elements.
Provocation
[184] This brings me to the final part of this analysis. This is the issue of what has been referred to as the partial defence of provocation.
[185] Section 232(1) of the Criminal Code provides that:
Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
[186] Provocation is defined in section 232(2) as:
A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control...if the person acted on it on the sudden and before there was time for his passion to cool.
[187] On this point, I have considered the decision of the Supreme Court of Canada in R. v. Tran, 2010 SCC 58. The issue of provocation was also canvassed in R. v. S.(M.), 2012 NSPC 77 a case before Judge Derrick (as she then was) in the Nova Scotia Provincial Court. I adopt her statement of the applicable law.
[188] The circumstances presented here, involving the interjection of [........................] into the encounter between the Accused and victim earlier in the morning, do not fall anywhere near the range of facts necessary to engage this defence. I address it as defence counsel has raised it as a final legal alternative. Feelings of anger, such as may have been present here, do not constitute provocation in law within the meaning of the section or caselaw.
[189] I find on the facts of this case there is no air of reality to the matter and accordingly the defence of provocation is not available to the Accused. There is therefore no basis on which to consider reducing the finding of second-degree murder to manslaughter.
Summary
[190] Accordingly, with respect to the Indictment, a finding of guilty is entered on the single count of second-degree murder.
Hunt J.