First conviction in the Creba boxing day shooting in Toronto is a dangerous precedent

On Boxing Day, back in 2005, Jane Creba was out doing some shopping at the Eaton Center in downtown Toronto. Clearly this is a busy time of year, and you wouldn't imagine too much going on.

But Creba got caught in the crossfire just outside the mall and was tragically shot and killed. 8 people were arrested in connection with the shooting, including several minors.

The first one to go to trial is a youth identified as J.S.R. Under the Canadian Youth Criminal Justice Act, youth cannot generally be identified if they were minors at the time of the crime. J.S.R. was 17 when the shooting occured. Now, J.S.R has just been convicted of second-degree murder, an interesting and severe conviction based on the lack of evidence available. But I will get to that in a moment. He is to be sentenced soon, which will be fascinating to watch. Without a doubt J.S.R deserves punishment for his involvement, but the question remains if that sentence should be second-degree murder and whether he should be sentenced as an adult or as a youth.

Now onto the facts and problems of the case itself. J.S.R was, everyone agrees, arrested in possession of a gun. The gun itself was 'forensically linked' to the crime scene in the sense that it was fired there. But there is no evidence to link the gun itself to Creba's actual death. Further, although there was gun powder residue on J.S.R.'s hands, it was inconclusive in proving that he ever actually fired a gun, let alone that gun. J.S.R claims that the gun was handed to him by another individual after the fight because of the fact that he was a minor and would not be in as much trouble if he was caught.

CTV News quotes the lawyer for the defence as saying the following:

"We've never, ever, ever had a stronger defence case," he said. "We maintain that our client is innocent and we won't stop fighting as far as we can go in order to make sure that everyone knows that he is innocent."
"I can't explain the jury's verdict. Most observers can't explain this jury's verdict," he continued. "This verdict is completely unreasonable and completely not supported by the evidence presented in this case."

Further, no eyewitnesses even attempted to link J.S.R. to the shooting itself. Basically, no one could positively say they saw him fire the gun in question. Even more shockingly, the dominant source of D.N.A. on the gun was from Louis Raphael Woodcock, the guy that J.S.R. claims handed him the gun.

So far, all evidence seems to collaborate J.S.R's story, and would at the very least provide the jury with reasonable doubt for the conviction. At the very least, this is a huge hit to the credibility of J.S.R, with the jury essentially saying that he is not to be believed. While this itself may be a fair judgment, in my opinion it shows a marked lack of foresight on the part of the prosecutor.

J.S.R. cooperated with police and voluntarily provided statements implicating others in the shootings (though the jury was not told about these statements). This testimony will be heavily relied on when the rest of these individuals come to trial next year. So, by allowing the jury to rule now on what could be seen as the credibility of this witness, it seems to me that this will make proving the more significant case against those who actually shot Creba much more difficult.

Currently there is weak evidence suggesting J.S.R actually fired a gun at all, let alone fired the shot that killed Jane Creba. So how could he be convicted of second-degree murder?

The Crown arguments did not appear to be going well until Justice Michael
Moldaver interjected and suggested trying a section of the Criminal Code that had never been raised before Judge Nordheimer.

The appeal court interpreted the rarely used section to find that a defendant can be found guilty of murder as long as they fired a gun in a shootout where someone was killed, even if they did not fire the fatal shot.

This seems a bit of a stretch to me and is a far broader interpretation of the section than I would have thought possible. Understandbly J.S.R. is guilty of an offence. There is evidence linking him to a robbery shortly before the murder. In fact, the mere fact that he knowingly handled a gun used in the shootout would mean he is guilty of an offence. However, I do not think this is sufficient to allow a conviction for second degree murder.

Stay posted for information on the sentencing.

[Source: Image from CTV News, facts from National Post]