Date: 20150623 Docket: YO 14-01-33321

(Winnipeg Centre) Indexed as: R. v. M.J.M.

Cited as: 2015 MBQB 103

COURT OF QUEENS BENCH OF MANITOBA

B E T W E E N: HER MAJESTY THE QUEEN, ) Counsel:

) ) for the Crown: - and - ) Michael M. Desautels and ) Krista D. Berkis

M.J.M., ) ) for the Accused:

Accused. ) Mandeep S. Bhangu

) ) JUDGMENT DELIVERED: ) June 23, 2015

Restriction on Publication: Pursuant to s. 110(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA), there must be no publication of any information that may identify the accused as having

been dealt with under this Act until further order of the court.

Restriction on Publication: Pursuant to s. 111(1) of the YCJA, there must no publication of the name of any witness who is a child or young person or the name of any witness whose name may tend to identify the

accused or any child/young person witness until further order of the court.

ABRA, J.

INTRODUCTION

[1] In the early morning of June 24, 2013, seventeen year old J.M. was sitting

in the front passenger seat of a Nissan Sentra automobile bearing Manitoba

licence plate GPL 442 (Nissan). The Nissan was parked in a parking lot off of

2015

MBQ

B 10

3 (C

anLII

)

2

Wolseley Avenue, behind the Nook Restaurant, which is located at the southeast

corner of Sherbrook Street and Wolseley, in Winnipeg.

[2] J.M. was shot in the head by a person standing outside the Nissan, who

shot through the passenger door window. At the time of the shooting, K.K. likely

was in the drivers seat behind the wheel. He was not injured in the shooting.

[3] As a result of the shooting, the accused, who at the time was a young

person pursuant to the definition of the YCJA, was charged with:

(a) two counts of attempting to murder J.M. and K.K. respectively

while using a restricted firearm, contrary to s. 239(1) of the

Criminal Code;

(b) two counts of discharging a firearm with intent to endanger the life

of J.M. and K.K. respectively by discharging a firearm at them,

contrary to s. 244(1) of the Criminal Code;

(c) possession of a loaded restricted firearm when he was not the

holder of an authorization or licence to so do, contrary to s. 95(1)

of the Criminal Code;

(d) possession of a firearm when he was prohibited from so doing by

reason of an order made pursuant to s. 109 of the Criminal Code,

contrary to s. 117.01(1) of the Criminal Code;

(e) failing to comply with a condition of an undertaking that he not

possess any firearm, contrary to s. 145(3) of the Criminal Code;

and

2015

MBQ

B 10

3 (C

anLII

)

3

(f) failing to comply with a probation order that he not communicate

(either directly or indirectly) with M.F., contrary to s. 733.1(1) of

the Criminal Code.

FACTS

[4] In June 2013, the accused is alleged to have been a member of the B Side

Crime Family (B Side). It is a street gang in Winnipeg. He had various tattoos

that showed his membership.

[5] It is alleged that J.M. was a member of the Mad Cowz, which is also a

street gang. He is of African descent and, at the time of the shooting, he wore

his long black hair in dread locks.

[6] According to Detective Sergeant William DeGroot of the Winnipeg Police

Service (WPS), who testified as an expert witness on street gangs in Winnipeg,

members of B Side considered their primary territory to be south of Portage

Avenue, north of Wolseley, west of Colony Street and east of Maryland Street.

The Mad Cowz primary territory was north of Portage Avenue, south of Notre

Dame Avenue, west of Isabel Street and east of Arlington Street.

[7] According to Det. Sgt. DeGroot, since August 2004, there has been a

common hatred between members of B Side and Mad Cowz. There is an

understanding on the part of members of both of those street gangs that their

respective territories need to be defended by any means possible.

2015

MBQ

B 10

3 (C

anLII

)

4

[8] Three members of B Side: M.F.; T.F.-S.; and D.D. were amongst the

witnesses for the Crown. Although all three of them were fellow gang members

of the accused in B Side in June 2013, they each implicated him in the shooting.

Testimony of M.F.

[9] M.F., who is now 15 years of age, lived with his mother, S.F., her

common-law husband, R.M., and his two brothers in a suite in an apartment

building located on Furby Street (the Furby suite), approximately two blocks

from the parking lot of the Nook Restaurant. In June 2013, M.F. thought that

the accused was his best friend.

[10] M.F. testified that, in the evening of June 23, 2013, he was at home with

R.M., M.F.s cousin T.F.-S. and T.F.-S.s girlfriend. The accused came to the

Furby suite at approximately 10:00 p.m. to 11:00 p.m. for a visit. The accused

was wearing a black hooded sweater and light pants which, although they were

called short pants, went well below his knees.

[11] At that time, to M.F.s knowledge, the accused was living on the fifth floor

of an apartment building on Balmoral Street, which is four streets east of Furby.

[12] Two photographs that were tendered into evidence were taken by

surveillance cameras at the Balmoral apartment building in which the accused

lived on June 23, 2013. The first photograph shows a male figure, wearing a

black hooded top and light coloured pants, on a bicycle on the fifth floor at

11:28 p.m. The second photograph shows the same black hooded figure with a

bicycle in the front vestibule of the Balmoral apartment building at 11:31 p.m. It

2015

MBQ

B 10

3 (C

anLII

)

5

is the Crowns position that these photographs depict the accused leaving his

suite on Balmoral en route to the Furby suite.

[13] According to M.F., the accused was a full patch member of B Side. He

was therefore higher in the pecking order than M.F. and T.F.-S., in that they

were mere runners who sold drugs. A full patch member has the authority to

tell a runner what to do.

[14] M.F. testified that, shortly after the accuseds arrival, he and the accused

left the Furby suite and took a taxi to a location in Winnipeg that he referred to

as central. It is in the geographic area near the Health Sciences Centre. At

that location, he and the accused bought some weed, which is a slang

expression for marihuana. The accused paid for the marihuana.

[15] Two photographs tendered into evidence, taken on June 24, 2013 at

12:32 a.m., from surveillance cameras in the front lobby of the Furby apartment

building, in which the Furby suite was located, show the accused and M.F.

walking out the front door of the apartment building. It is the Crowns position

that the photographs depict the accused and M.F. leaving the Furby suite to get

the taxi to go to central.

[16] While M.F. and the accused were on their way back to the Furby suite,

after buying the marihuana, their taxi went south on Maryland to the intersection

of Wolseley and then turned east on Wolseley. The taxi stopped at a red light at

the intersection of Wolseley and Sherbrook. Once the light turned green, the

2015

MBQ

B 10

3 (C

anLII

)

6

taxi continued across Sherbrook. The parking lot for the Nook Restaurant was

on the right.

[17] M.F. testified that, in the parking lot, they saw a man with dread locks in

his hair, who was wearing a red and black jacket, leaning against a brown or

beige car. There was another man sitting in the drivers seat of the car.

[18] According to M.F., the accused commented that the guy in the red and

black jacket was a member of Mad Cowz. The accused identified him as the

older brother of another Mad Cowz member, D.M.

[19] The taxi then proceeded to the Furby apartment building where M.F. and

the accused got out. The accused paid for the taxi. The two made their way to

the rear patio of the Furby suite and, near the patio doors, the accused made a

call on his cell phone. M.F. heard the accused say into the phone that there was

a Mad Cowz member in the neighbourhood and he needed a bitch. According

to M.F., a bitch is slang for a gun.

[20] M.F. and the accused then left the patio, walked across the back lane that

separates Furby and Langside Street, and through a yard. They stopped on

Langside. They waited approximately ten to fifteen minutes at which time a

white car pulled up. The accused went to the car and got into the front

passenger side.

[21] After a short time, the accused got out of the white car, pulled a handgun

out from the front of his pants and showed it to M.F. The handgun had a black

2015

MBQ

B 10

3 (C

anLII

)

7

barrel. M.F. noted that the serial number had been scratched off. The accused

then put the handgun back into the front waist of his pants.

[22] According to M.F., the gun that the accused had was a .45 calibre,

although M.F. admitted that he did not know what .45 calibre means. The gun

was approximately nine inches in length. It was not a revolver. Instead, the

bullets were put into a clip that went into the handle. The handgun could be

caulked by the barrel being pulled back. Clearly, he was describing an automatic

handgun.

[23] M.F. and the accused then walked back to the Furby suite. Once they

arrived at the patio outside the suite, T.F.-S. came through the patio doors onto

the patio. The accused told T.F.-S. to come with him and M.F. because there

was a Mad Cowz member in the area.

[24] According to M.F., he, the accused, and T.F.-S. walked down Furby to the

intersection of Wolseley and then west on Wolseley towards the parking lot of

the Nook Restaurant where the Nissan was parked. At one point, M.F. told the

accused that he wanted to go back, but the accused called him a pussy and

told M.F. to stay with him. He did so.

[25] Once the accused, M.F. and T.F.-S. got to the parking lot, M.F. turned and

started to walk north in the back lane between Furby and Sherbrook.

Immediately thereafter he heard a knock on a window and heard someone shout

shoot him. He did not recognize the voice, but he did not think that it was

2015

MBQ

B 10

3 (C

anLII

)

8

either the accused or T.F.-S. He then saw T.F.-S. walking towards him in the

back lane.

[26] According to M.F., he then saw the accused at the passenger side window

of the same car that he had seen previously, when he had been in the taxi with

the accused on Wolseley. M.F. testified he heard two gunshots. Immediately

thereafter he heard and saw the car back up. It smashed into a street lamppost,

went across the boulevard and onto Furby.

[27] The last time that M.F. saw the accused, he was running from the parking

lot of the Nook Restaurant west on Wolseley towards Sherbrook. M.F. started

running north in the back lane in which he was located and went through the

yard of a house onto Furby.

[28] When M.F. arrived at the Furby suite, T.F.-S. was already there, along

with R.M. M.F. testified that he did talk to T.F.-S. that night about what had

happened. He did not, however, tell R.M. what had happened until a couple of

days later.

[29] Later that same day, M.F. spoke to the accused by phone. The accused

told M.F. not to be scared everything was okay.

[30] Thereafter, the accused came to the Furby suite. The accused told M.F.

that he might have shot someone in the head. He had intended to shoot three

times, but the gun had jammed the third time. The accused then said that the

gun was long gone.

2015

MBQ

B 10

3 (C

anLII

)

9

[31] M.F. was interviewed by members of WPS on October 13, 2013. He gave

a statement. He testified that it was never suggested to him by anyone,

including T.F.-S., or members of WPS, to blame the accused for the shooting.

[32] M.F. also testified that, as part of his interview, he was shown ten

photographs from which he identified the photograph of the accused.

[33] In cross-examination, M.F. admitted that on June 19, 2013, less than a

week before the shooting, he had pleaded guilty to various criminal charges,

including: trafficking in cocaine; robbery; possession of proceeds of crime; and

failure to comply with an undertaking. He was placed on probation, one of the

conditions being that he have a curfew of 8:30 p.m. He admitted that he was in

breach of the condition when he left the Furby suite in the late evening of

June 23, 2013, and stayed out past midnight into June 24, 2013.

[34] M.F. also admitted in cross-examination that, when he was initially

interviewed by WPS, he did not mention T.F.-S. being with him and the accused

when the shooting took place. He testified that he did not want to implicate

T.F.-S. because he is M.F.s cousin. In a later statement to WPS, M.F. did

mention T.F.-S.s involvement.

Testimony of T.F.-S.

[35] T.F.-S. testified that he is at present 19 years of age. Although M.F. is

approximately three years younger than T.F.-S. and they are cousins, T.F.-S.

said that they are more like brothers. Both he and M.F. were members of

B Side. However, they both dropped out of the gang after the shooting.

2015

MBQ

B 10

3 (C

anLII

)

10

[36] In the evening of June 23, 2013, T.F.-S. was at the Furby suite with his

girlfriend, M.F. and R.M. The accused came to the suite around midnight. He

was wearing a black hooded sweater and shorts.

[37] Shortly after arriving at the suite, the accused and M.F. left to get some

marihuana. They returned approximately one-half hour later.

[38] As soon as the accused and M.F. returned, the accused told T.F.-S. that

there was going to be a beef, which means a fight. He instructed T.F.-S. to

put on his shoes and come with him and M.F. The three of them left the Furby

suite.

[39] T.F.-S. testified that the three of them walked down the back lane

between Langside and Furby, cut between two houses and came out on Furby.

They then walked to Wolseley, turned west and walked down Wolseley towards

the Nook Restaurant.

[40] While on Wolseley, M.F. separated from the other two and began to walk

away. T.F.-S. testified that he did not hear the accused refer to M.F. as a pussy.

T.F.-S. and the accused continued walking west on Wolseley. When they got to

the parking lot behind the Nook Restaurant, he saw a grey four-door car. There

was a man standing at the drivers door, who appeared to be cleaning the car.

[41] According to T.F.-S., the accused walked up to the car and knocked on

the front passenger window. A man seated in the passenger seat seemed to

look up at the accused. He had long black hair. T.F.-S. could not tell whether

the hair was in a ponytail or dread locks.

2015

MBQ

B 10

3 (C

anLII

)

11

[42] T.F.-S. testified that he did not hear any words exchanged between the

accused, the passenger, or the man at the drivers door. T.F.-S. saw the

accused step back and immediately thereafter T.F.-S. heard what sounded like

five shots. He was approximately five feet behind the accused at the time.

[43] The accused had his back to T.F.-S. and he could not see if the accused

had a gun, nor had he seen the accused with a gun earlier that night.

[44] Immediately upon hearing the shots, T.F.-S. ran out of the parking lot

towards Furby. He cut through the yard of a house and returned to the Furby

suite. M.F. was not yet there, but he came in shortly thereafter. T.F.-S. did not

see the accused again that night.

[45] According to T.F.-S., he told both R.M. and M.F. that night what had

happened. He was shocked by the incident and he did not know what to do.

[46] Approximately one week later, T.F.-S. and M.F. saw the accused in the

vicinity of Furby. They talked about the shooting. T.F.-S. specifically asked the

accused why he had done what he did and asked the accused whether he

thought that he was a gangster. The accused replied Yes.

[47] According to T.F.-S., the accused admitted that he had shot a gun at the

car. The accused referred to the gun as a bitch. He said that he was shooting

at a member of the Mad Cowz.

[48] In October 2013, T.F.-S. was interviewed by members of WPS. He gave a

statement and was shown ten photographs. He recognized a photograph of the

accused and identified him.

2015

MBQ

B 10

3 (C

anLII

)

12

[49] In cross-examination, T.F.-S. admitted that:

both he and M.F. regularly sold crack cocaine. However, they did

not sell any drugs that night;

he did not see the accused drink any liquor or smoke any

marihuana that night. But the accused did seem somewhat

sketched out, which means high; and

he was friends with William Moar, whose nickname was G Money.

William Moar was a B Side member who was killed in

February 2013. A Mad Cowz member was arrested for the

shooting.

[50] In cross-examination, T.F.-S. specifically denied that:

he got a gun when he heard about the shooting of William Moar.

He denied shooting J.M. in revenge for the shooting of William

Moar; and

he, R.M. and M.F. agreed upon a plan to blame the accused for

shooting J.M.

Testimony of D.D.

[51] In 2013, D.D. was a member of B Side and knew the accused. In

June 2013, D.D. was staying at a house located on College Avenue, in the north

end of Winnipeg (College house). The College house was used by B Side for

the purpose of trapping, which means selling crack cocaine.

2015

MBQ

B 10

3 (C

anLII

)

13

[52] D.D. testified that, when a house was being used for trapping, various

members of B Side would stay in it for two or three days and, in effect, work in

shifts selling crack cocaine. Members who were off-duty would generally party.

[53] According to D.D., one afternoon in June, a week or so after the shooting

of J.M., the accused came to the College house. The accused and D.D. sat on an

outside porch talking with other members of B Side.

[54] During the conversation, D.D. commented to the accused that he had

heard that the accused had caught someone slipping. That term refers to a

gang member venturing into the territory of a rival gang, at which time members

of the gang whose territory it is, will invariably chase or fight the trespasser.

[55] D.D. testified he then said to the accused that he had heard that the

accused had shot a Mad Cowz member. The accused replied Yeah I shot that

nigger in the head with a .45.

Testimony of R.M.

[56] R.M., M.F.s step-father, testified for the Crown. He and M.F.s mother,

S.F., have three children who, in June 2013, were all living at the Furby suite.

Shortly before June 23, 2013, S.F. had left Winnipeg with two of the children to

attend a funeral. R.M. had stayed home with M.F. T.F.-S. was also staying with

them at the time.

[57] R.M. testified that the accused regularly attended the Furby suite, at least

three or four times a week. The accused came to the Furby suite on June 23,

2013. He believed that it was in the afternoon. R.M., the accused, M.F. and

2015

MBQ

B 10

3 (C

anLII

)

14

T.F.-S. sat around for a period of time playing video games. No one was

drinking or taking drugs.

[58] At some point in the evening, the accused and M.F. left the suite to go

and buy some marihuana. R.M. did not see them again until much later that

night. While they were still gone, R.M. was sitting in the living room when he

heard what he thought were three vehicle backfires. He later realized that they

were gun shots.

[59] Shortly thereafter, M.F. returned to the suite. T.F.-S. showed up a few

minutes later. Both of them looked shaken up.

[60] R.M. gave evidence about the conversation that he had with M.F. and

T.F.-S. about what the accused had allegedly done. The content of that

conversation was led in evidence by the Crown to refute any evidence that might

be presented on behalf of the accused, that R.M., M.F. and T.F.-S. had conspired

to blame the accused for the shooting of J.M., when in fact either M.F. or T.F.-S.

had done it.

[61] However, no such evidence was given on behalf of the accused.

Questions were asked of or suggestions were made to various Crown witnesses

whether there had been such a conspiracy, but those questions or suggestions

were denied. Therefore, since there is no evidence of any such conspiracy, I am

disregarding the evidence and not describing in these written reasons the

content of the conversation because it is clearly hearsay.

2015

MBQ

B 10

3 (C

anLII

)

15

[62] R.M. testified that, about a week after the shooting, he ran into the

accused at a nearby grocery store. He initially greeted the accused inside the

store and then the two of them went outside and had a conversation. R.M.

specifically asked the accused whether T.F.-S. and/or M.F. had anything to do

with the shooting. The accused replied that they did not. He said that they had

just stood back.

[63] R.M. then asked the accused what had happened to the gun. The

accused replied that he had gotten rid of it.

[64] R.M. denied that he, M.F. and T.F.-S. conspired to blame the accused for

the shooting.

[65] In cross-examination, R.M. admitted that he knew that M.F. was governed

by a curfew. He and M.F. often argued about M.F.s compliance with it. The

night of the shooting, however, it was R.M.s recollection that M.F. and the

accused had left the suite before the curfew.

Testimony of Greg Barnsdale

[66] Greg Barnsdale was a security officer in Urgent Care at the Misericordia

Health Centre, which is across Sherbrook from and one block south of the Nook

Restaurant. He was on duty in the early morning of June 24, 2013. He tendered

into evidence a video recording which shows that, at approximately 1:30 a.m.,

two men entered Urgent Care. One was African and one was Caucasian. The

African, who had dread locks, was later identified as J.M. He had blood on the

right side of his head. He told Greg Barnsdale that he had been shot.

2015

MBQ

B 10

3 (C

anLII

)

16

[67] While Greg Barnsdale and medical staff were tending to J.M., the

Caucasian male left the building. When Greg Barnsdale later went outside to

look for him, he saw the Caucasian male walking away from the Misericordia

Health Centre over the nearby Sherbrook/Maryland Bridge. The Nissan was still

parked in the driveway of the Misericordia Health Centre.

Testimony of M.S. and K.K.

[68] In June 2004, M.S. owned the Nissan. He is friends with K.K. According

to M.S., in the afternoon of June 23, 2013, K.K. asked if he could borrow the

Nissan. M.S. drove the Nissan to K.K.s house and left it there.

[69] In the early morning of June 24, 2013, M.S. was contacted by members of

WPS who advised him that the Nissan had been involved in the shooting of J.M.

[70] K.K. identified himself as being the Caucasian male shown in the video

recording who had entered Urgent Care. He testified that he had driven to the

Misericordia Health Centre in the Nissan and left it in the driveway.

[71] There is a clear inference that K.K. was the driver of the Nissan at the

time that J.M. was shot in the parking lot of the Nook Restaurant. But neither

counsel asked K.K. any questions about the shooting or about him driving from

the Nook Restaurant parking lot to the Misericordia Health Centre.

[72] K.K. was a very uncooperative witness. I have to assume that he was just

as uncooperative with WPS during its investigation of the shooting of J.M. and

that he refused to provide any information about it.

2015

MBQ

B 10

3 (C

anLII

)

17

[73] K.K. did deny that he was affiliated with any street gang and also denied

that J.M. was affiliated with any street gang.

Testimony of Megan Vosters and Matthew Brown

[74] Megan Vosters and Matthew Brown were both in the vicinity of the Nook

Restaurant at the time of the shooting.

[75] At approximately 1:30 a.m. on June 24, 2013, Megan Vosters was in the

doorway of the Rose and Bee Pub, which at that time was located just north of

the northeast corner of Sherbrook and Wolseley. It was across Wolseley from

the Nook Restaurant.

[76] She heard two gun shots. Shortly thereafter she saw a man running from

Wolseley around the corner of the building in which she was standing. The man

ran north on Sherbrook for a short distance, turned west and ran across

Sherbrook to the other side. The last she saw the man, he was running between

two buildings on the west side of Sherbrook. According to Megan Vosters, the

man was wearing a hat or a hood on his head. He appeared to be wearing long

pants.

[77] In June 2013, Matthew Brown lived in an apartment in a building located

on the north side of Wolseley, east of the intersection with Sherbrook. The

apartment faced the parking lot of the Nook Restaurant.

[78] At approximately 1:30 a.m., Matthew Brown was having drinks with some

friends, when he heard what sounded like three gun shots. He looked out the

2015

MBQ

B 10

3 (C

anLII

)

18

window of his apartment and saw someone running east on Wolseley towards

Furby. He could not tell if it was a man or a woman.

[79] The person was wearing a grey hoodie. Matthew Brown then saw a four-

door car, light grey or silver in colour, being driven erratically out of the parking

lot behind the Nook Restaurant. The car went west on Wolseley towards

Sherbrook.

WPS Identification Unit Evidence

[80] Members of the Identification Unit of WPS were involved in the

investigation of the shooting of J.M. Constable Jerome Taylor took photographs

of the crime scene. Constable Garrett Carrette gathered all of the exhibits.

[81] When they arrived at the crime scene, the Nissan was parked in front of

Urgent Care of the Misericordia Health Centre. Windows were smashed and

there was a large dent with green paint smatters on the left front of the vehicle,

between the drivers door and the hood. There was blood on the front

passenger seat.

[82] In the parking lot of the Nook Restaurant, Constable Taylor located on the

ground three spent shell casings and one live round of ammunition, all from a

.45 calibre firearm. They were seized and turned over to Constable Carrette.

[83] Also seized was a red and black hooded jacket. It had holes in the hood

and the right shoulder. Constable Taylor testified that the holes were consistent

with the trajectory of a bullet striking J.M. in the shoulder and then passing

through into his head.

2015

MBQ

B 10

3 (C

anLII

)

19

[84] There were black tire tracks on the sidewalk and boulevard between the

Nook Restaurant parking lot and Wolseley. The tire tracks on the boulevard ran

between a fire hydrant and a light standard. The light standard was damaged

and the light at the top had fallen off.

[85] Constable Taylor concluded that the Nissan had been in the parking lot,

had been driven quickly out of the parking lot over the boulevard and had then

struck the light standard. It was that collision that had caused the damage to

the front of the Nissan.

[86] The front passenger window was smashed and there was a bullet hole in

the front passenger door of the Nissan. Constable Taylor concluded that a bullet

had passed through the door. That bullet ended up inside the door frame.

[87] The rear window of the Nissan was smashed. There was a dent along the

frame of the back window and the edge of the roof. Constable Taylor concluded

that another bullet had struck at that location, breaking the window. That bullet

was not located.

[88] The third of the three fired bullets was later recovered from J.M.s head

during surgery.

Testimony of Detective Sergeant DeGroot

[89] In addition to Det. Sgt. DeGroots evidence, hereinbefore described in

paragraphs 6 and 7, he also gave evidence in his report and at trial about the

formation of B Side in 2002, the formation of Mad Cowz in 2004, and the

background and continuing existence of both street gangs. He confirmed that

2015

MBQ

B 10

3 (C

anLII

)

20

the accused was a member of B Side and that the tattoos on his body verified

that membership.

[90] Notwithstanding the denials of K.K., Det. Sgt. DeGroot testified that both

J.M. and K.K. were members of Mad Cowz. He provided evidence that supported

this opinion.

[91] Det. Sgt. DeGroot testified that both B Side and Mad Cowz have been,

and continue to be, involved in the trafficking of drugs. Members of both gangs

have a willingness to commit acts of violence.

[92] According to Det. Sgt. DeGroot, although B Sides primary territory is that

previously described in paragraph 6, since 2013 it has also been operating in the

north end of Winnipeg. It is therefore not surprising that B Side used the

College house to sell crack cocaine.

[93] Det. Sgt. DeGroot also confirmed that the location known as central is in

downtown Winnipeg, just north of Notre Dame, in the vicinity of the Health

Sciences Centre.

AGREED FACTS

[94] An agreed statement of facts was tendered as an exhibit. Included in

those facts is the following evidence:

J.M., born August 10, 1995, suffered a gunshot wound to his right

skull and right shoulder area on June 24, 2013. After being found

at the Misericordia Health Centre, and receiving emergency medical

2015

MBQ

B 10

3 (C

anLII

)

21

services, he was transferred to the Health Sciences Centre.

Emergency surgery was performed;

J.M. sustained a severe traumatic brain injury which resulted in

severe language and thinking deficits, impaired mobilization, loss of

control of bowel and bladder functions, incoordination of speech,

and poor head and trunk control. As of March 30, 2015, his

prognosis remains guarded. He is not ambulatory and uses a

wheelchair;

on June 24, 2013, the accused did not have a valid licence or

registration certificate to possess or carry any firearm;

analysis by the R.C.M.P. Firearms Section resulted in an opinion

that the portions of the bullets recovered from the passenger door

frame of the Nissan and the head of J.M. were both fired from the

same firearm;

the three cartridge casings recovered in the parking lot of the Nook

Restaurant were all fired from the same firearm. It was probably a

.45 calibre automatic pistol; and

the accused was subject to a probation order and a weapons

prohibition order both dated April 17, 2013, and an undertaking

dated February 15, 2013.

[95] Filed as exhibits were the probation order, the weapons prohibition order

and the undertaking. The probation order provided, inter alia, that the accused

2015

MBQ

B 10

3 (C

anLII

)

22

have no contact or communication (either directly or indirectly) with M.F. The

weapons prohibition order provided, inter alia, that the accused not possess any

firearm for a period of five years. The undertaking provided, inter alia, that the

accused not possess any firearm.

[96] The accused did not testify and no witnesses testified on his behalf.

ANALYSIS

[97] The evidence of M.F., T.F.-S., D.D. and R.M. all identified the accused as

being the one who shot J.M.

[98] Based upon the backgrounds of M.F., T.F.-S. and D.D. respectively, and in

particular their admissions that they were members of B Side and that they each

continuously committed criminal offences, I am satisfied that the testimony of

each of them has to be looked at with the greatest care and caution. It would

be dangerous to convict the accused based upon evidence of any of them alone.

[99] If a jury had been hearing this case, I undoubtedly would have given a

warning in my instructions to the jury pursuant to Vetrovec v. The Queen,

[1982] 1 S.C.R. 811.

[100] Accordingly, I am aware that I should look for independent confirmation

or corroboration of M.F.s, T.F.-S.s and D.D.s evidence. According to Vetrovec,

however, the independent evidence does not have to point to or implicate the

accused in the commission of the offences with which he is charged.

[101] Notwithstanding this warning, I am satisfied beyond a reasonable doubt

that the accused shot J.M. with a .45 calibre handgun on June 24, 2013. I was

2015

MBQ

B 10

3 (C

anLII

)

23

particularly impressed with the testimony of M.F. and R.M. I believed both of

them.

[102] Although T.F.-S. and D.D. were not, in my view, as strong in their

evidence as M.F. and R.M., their evidence was consistent with the evidence of

the first two.

[103] I am satisfied that there is considerable evidence that confirms and

corroborates the testimony of M.F., T.F.-S. and D.D. Firstly, the testimony of

M.F., T.F.-S., D.D. and R.M. respectively is corroboration of the testimony of

M.F., T.F.-S. and D.D.

[104] Secondly, there is other strong, cogent and independent evidence that

corroborates the testimony of M.F., T.F.-S., and D.D. It includes:

M.F. testified that the hand gun that the accused used was a .45

calibre. The bullets recovered from the Nissan and J.M.s head

were both from the same firearm, which was probably a .45 calibre

automatic pistol;

D.D. testified that the accused told him that he had used a .45

calibre;

WPS members located in the Nook Restaurant parking lot three

expended .45 calibre cartridges; and

the accused had told M.F. that the gun had jammed. This is

consistent with the one live unexpended bullet for a .45 calibre

firearm being found at the scene.

2015

MBQ

B 10

3 (C

anLII

)

24

[105] Moreover, M.F. testified that one of the men that he saw in the parking lot

of the Nook Restaurant had dread locks and was wearing a red and black jacket.

This is confirmed and corroborated, in that:

members of the Identification Unit of WPS found and seized a red

and black hooded jacket; and

a video recording of J.M. entering Urgent Care at the Misericordia

Health Centre shows him with dread locks.

[106] This evidence of the dreadlocks corroborates T.F.-S.s testimony that the

man in the passenger seat of the Nissan had long black hair, although he could

not tell whether it was in a ponytail or dread locks.

[107] D.D.s testimony is also confirmed and corroborated in that the accused

used a racist term in describing to D.D. that it was a person of African descent

whom he had shot. The video recording of J.M. in Urgent Care confirms that he

is of African descent.

[108] It was argued on behalf of the accused that there were significant

inconsistencies in the Crowns evidence about the circumstances surrounding the

shooting. Therefore I should have a reasonable doubt of the guilt of the

accused. For example:

there were discrepancies in the testimony of M.F. and T.F.-S. about

the route that they followed from the Furby suite to the parking lot

of the Nook Restaurant;

2015

MBQ

B 10

3 (C

anLII

)

25

there were inconsistencies in the testimony of various witnesses

about the number of shots that were fired; and

M.F. testified that the accused referred to him as a pussy. T.F.-S.

did not confirm this alleged remark.

[109] I do not find any of these inconsistencies to be significant. To the

contrary, I find them understandable in that there are often minor

inconsistencies in the testimony of witnesses to any crime. Furthermore, if there

had not been any inconsistencies in the testimony of M.F., T.F.-S. and R.M., it

undoubtedly would have been argued on behalf of the accused that this supports

the theory that those three witnesses conspired to blame the shooting on the

accused.

[110] It was also submitted that the times depicted in the photographic

evidence showing M.F. and the accused in the lobby of the Furby suite

apartment block at 12:30 a.m. on June 24, 2013, and the evidence that the

shooting occurred at 1:30 a.m. demonstrates that it was impossible for the

accused to have been responsible for the shooting. It was submitted that,

during that time frame, the accused and M.F. could not have gone all the way to

central, bought marihuana, returned to the Furby suite, phoned for and waited

for the gun that had been ordered and then make their way to the parking lot of

the Nook Restaurant.

[111] I do not accept that argument. There was no evidence as to the exact

location where the accused and M.F. went to purchase the marihuana, or the

2015

MBQ

B 10

3 (C

anLII

)

26

times and distances necessary to drive to that location and to return to the Furby

suite. There was no evidence as to the amount of traffic that was on the route,

or might reasonably be expected to be on the route, at that time of night. The

lack of evidence in this regard causes me to conclude that this argument is pure

conjecture and speculation.

[112] In addition, notwithstanding that it is important to have corroborating

evidence for the testimony of M.F., T.F.-S. and D.D., there is nothing to suggest

that R.M. was an unsavoury person in June 2013. Therefore, it is not as

important that there be confirmation and corroboration of his testimony. As I

indicated, I was very impressed with his testimony. According to R.M., the

accused effectively admitted to him, approximately a week after the shooting of

J.M., that he had done it.

[113] Although there is no direct evidence that K.K. was the person in or near

the drivers seat at the time of the shooting, I am satisfied beyond a reasonable

doubt that he was. Firstly, according to M.S., K.K. borrowed the Nissan on June

23, 2013, and did not return it. The shooting of J.M. occurred in the early

morning of June 24, 2013. Secondly, there is no other rational explanation for

K.K. accompanying J.M. to Urgent Care a very short period of time after J.M. was

shot.

[114] I reiterate therefore that I am satisfied beyond a reasonable doubt that

the accused is the one who fired the .45 calibre handgun into the Nissan when

2015

MBQ

B 10

3 (C

anLII

)

27

J.M. was in the passenger seat. One of the bullets struck him in the head. K.K.

was not hit by any of the three shots.

[115] The issue then becomes whether I find the accused guilty of attempt

murder of one or both of J.M. and K.K., or I find the accused guilty of the lesser

offence of discharge firearm with intention to endanger the life of one or both of

them.

[116] In order for me to find the accused guilty of attempt murder, I must be

satisfied beyond a reasonable doubt that he had a specific intent to kill one or

both of J.M. and K.K.

[117] In The Queen v. Ancio, [1984] 1 S.C.R. 225, McIntyre J. wrote (at

p. 248-49):

While it is clear from ss. 212 and 213 of the Criminal Code that an unintentional killing can be murder, it is equally clear that whatever mental elements may be involved and whatever means may be employed there cannot be a murder without a killing. Section 24 of the Code defines, in part, the offence of attempt as having an intent to commit an offence. As Estey J. observed in R. v. Quinton, [1947] S.C.R. 234, at pp. 235-36, in referring to the then s. 72 (now s. 24):

This section requires that one to be guilty of an attempt must intend to commit the completed offence and to have done some act toward the accomplishment of that objective.

The completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include an intention to kill. I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213 of the Code. I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill.

[emphasis added]

2015

MBQ

B 10

3 (C

anLII

)

28

[118] With respect to J.M., I am satisfied that the accused intended to kill him.

The evidence is clear that the accused had seen J.M. approximately one hour

before the shooting in B Side territory and that the accused recognized him as

being a member of Mad Cowz. Rather than merely stopping and warning J.M. to

get out of the territory, or even physically fighting with J.M., the accused decided

to get a gun.

[119] Almost immediately thereafter, the accused ordered a .45 calibre

handgun, which is a restricted weapon and which was loaded with bullets. After

receiving it, he went to the parking lot of the Nook Restaurant and saw J.M. in

the passenger seat of the Nissan. The accused walked up to the passenger side

of the Nissan and, without any apparent warning, fired three shots point blank

into the Nissan.

[120] This was not a spur of the moment act on the part of the accused. It was

planned and premeditated. I reiterate that I am satisfied beyond a reasonable

doubt that the accused intended to kill J.M. As a result, I find the accused guilty

of the attempt murder of J.M.

[121] With respect to K.K., the situation is somewhat different. Firstly, there is

no evidence to suggest that the accused thought that K.K. was a member of the

Mad Cowz. Secondly, the accused walked up to the passenger side of the Nissan

because that is where J.M. was seated. Although the accused fired three shots,

and even attempted to fire a fourth, I am not satisfied beyond a reasonable

doubt that he intended to kill K.K.

2015

MBQ

B 10

3 (C

anLII

)

29

[122] I therefore come to the next issue of whether the accused is guilty of the

lesser offence of discharging a firearm with intent to endanger the li fe of K.K.

The mens rea for this offence is one of specific intent. See R. v. Foti (A.), 2002

MBCA 122, 166 Man.R. (2d) 269 at para. 24.

[123] I can infer from the circumstances of the offence whether the accused

had the requisite intent to endanger K.K.s life. It is acceptable for me to

consider that a person generally intends the natural consequences of his actions.

See Foti at para. 25.

[124] I am satisfied beyond a reasonable doubt that the accused knew that, by

firing three shots into the Nissan as he did, and in attempting to fire a fourth

shot, he would be endangering the life of K.K. Clearly the three bullets were not

fired point black at J.M. alone because only one struck him.

[125] I am therefore finding the accused not guilty of the charge of attempt

murder with respect to K.K., but am finding the accused guilty of the lesser

offence of discharge firearm with intent to endanger K.K.s life.

[126] With respect to the balance of the offences with which the accused is

charged, the evidence clearly indicates, and I am satisfied beyond a reasonable

doubt, that based upon the evidence that I heard and the evidence in the agreed

statement of facts, the accused is guilty of the other four counts with which he is

charged. Specifically, by possessing the loaded .45 calibre handgun, which is a

restricted weapon for which he did not have an authorization or licence to

2015

MBQ

B 10

3 (C

anLII

)

30

possess, he is guilty of the charge of possession of a loaded restricted firearm

when he was not the holder of an authorization or licence to so do.

[127] Similarly, by possessing the .45 calibre handgun, he was in possession of

a firearm, which is contrary to an order made pursuant to s. 109 of the Criminal

Code that prohibited from him so doing. He was also in breach of the condition

of his undertaking that he not possess any firearm.

[128] By being in the company of M.F. on June 23, 2013 and June 24, 2013, the

accused was in breach of his probation order that he not communicate directly or

indirectly with M.F.

CONCLUSION

[129] For the foregoing reasons, I find the accused:

(a) guilty of the attempt murder of J.M.; and

(b) not guilty of the attempt murder of K.K., but guilty of discharging a

firearm with intent to endanger the life of K.K.

[130] I am ordering a conditional stay of proceedings on the charge of

discharge firearm with intent to endanger the life of J.M. based on R. v.

Kienapple, [1975] 1 S.C.R. 729.

[131] I further find the accused:

(c) guilty of possession of a loaded restricted firearm when he was not

the holder of an authorization or licence to so do;

2015

MBQ

B 10

3 (C

anLII

)

31

(d) guilty of possession of a firearm when he was prohibited from so

doing by reason of an order made pursuant to s. 109 of the

Criminal Code;

(e) guilty of failing to comply with a condition of an undertaking that

he not possess any firearm; and

(f) guilty of failing to comply with a probation order that he not

communicate directly or indirectly with M.F.

Abra J.

2015

MBQ

B 10

3 (C

anLII

)

COURT OF QUEENS BENCH OF MANITOBAINTRODUCTIONFACTSTestimony of M.F.Testimony of T.F.-S.Testimony of D.D.Testimony of R.M.Testimony of Greg BarnsdaleTestimony of M.S. and K.K.Testimony of Megan Vosters and Matthew BrownWPS Identification Unit EvidenceTestimony of Detective Sergeant DeGrootAGREED FACTSANALYSISCONCLUSION