W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
R. v. Dadshani, 2007 ONCA 493
COURT OF APPEAL FOR ONTARIO
MOLDAVER, FELDMAN and LANG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
WAHAB DADSHANI, TAWAB DADSHANI, TARIK ECHRIF, SHAWN HULBERT, MOHAMMED ABED and FAHIM PAYMAN
Appellants
Counsel:
Lawrence Greenspon and Eric Granger for the appellant, Wahab Dadshani, Jeffrey R. Schroeder for the appellant, Tawab Dadshani, James Lockyer for the appellant, Tarik Echrif and Marlys Ewardh and Delmar Doucette for appellants, Shawn Hulbert, Mohammed Abed and Fahim Payman
Roger A. Pinnock and Robert Wadden for the respondent
Heard and released orally: June 25, 2007
On appeal from an order of Justice Roydon J. Kealey of the Superior Court of Justice dated April 19, 2006, refusing to quash the order of Justice Peter J. Wright of the Ontario Court of Justice dated June 24, 2005 committing the appellants to stand trial on first degree murder.
ENDORSEMENT
1On these appeals, the appellants argue that there was not the necessary "scintilla" of evidence of planning and deliberation on which to base their committals for first degree murder. Their argument is based primarily on the intervening act of the victim's colleague, Mr. Estephan, who - within seconds of their arrival at the scene - opened fire on the appellants. They say one cannot use the fact of the murder linked with the events that occurred before that shooting, to found the inference of planning and deliberation, because it was that shooting that caused the three appellants to follow the victim and kill him.
2As well, the appellants argue that the circumstances contradicted planning and deliberation because the altercation took place in broad daylight in a very public place with none of the appellants attempting to disguise their identities. Further, they argue, the victim did not initially appear to be intimidated by the appellants and, moments before his death, he was recorded behaving in an apparently nonchalant manner.
3However, the evidence at the preliminary inquiry also showed, 1) extensive communication prior to the arrival of the appellants at the scene, 2) the appellants arrived in close convoy, 3) they exited their cars in rapid fashion and left some car doors open with some engines running, 4) the Dadshanis, Echrif and, inferentially, Abed were all armed, and 5) other lethal weapons were located in the cars.
4While the appellants did not immediately shoot the victim, as counsel argues they could have, they rushed, armed, towards the victim and immediately engaged in aggressive conduct, even before Mr. Estephan employed his gun. When Echrif employed his gun, in response, Wahab Dadshani, Tawab Dadshani and Tarik Echrif, armed with a knife, a gun, and a sword, continued their pursuit of the victim and, within minutes, the victim suffered multiple injuries resulting in his death, including injuries inflicted by the sword.
5This evidence, taken together, can clearly support an inference of planning and deliberation to murder. It is not a necessary inference, but it is an available inference. There is no missing link in the chain of inferences from the circumstances.
6The appellants Fahim Payman., Shawn Hulbert and Mohammed Abed remained outside the building in which the killing occurred. Fahim Payman, the driver of the third vehicle, remained in his car throughout. However, he communicated with Wahab Dadshani before the appellants' arrival at the scene and went to Mohammed Abed's aid after Mohammed Abed was shot. Shawn Hulbert was apparently unarmed. However, he followed Wahab Dadshani, Tawab Dadshani and Tarik Echrif in advancing towards the victim, until he took cover during the Estephan shooting. Mohammed Abed, who inferentially was carrying an asp, was shot in the ankle by Mr. Estephan while rushing towards the altercation at the top of the stairs. Although Fahim Payman., Shawn Hulbert and Mohammed Abed remained outside during the fatal altercation with the victim inside the Midway, there was evidence that they were aware of the plan and that they participated in its initial stages. As such, they were properly committed as parties.
7A jury may conclude whether the Estephan shooting changed the dynamic and how, if at all, that impacted on the intentions of the various appellants. However, in careful and comprehensive reasons, the preliminary inquiry judge concluded that there was evidence upon which a jury, properly instructed, could draw the inference that the murder was planned and deliberate on the part of the appellants. This inference was available on the evidence of the communications, the convoy, the rapid exiting, the manner of stopping the vehicles, the rushing towards the victim, the carrying of lethal weapons, and the nature of the attack. The preliminary inquiry judge's decision was upheld by the Superior Court, also in careful and comprehensive reasons. We see no basis on which to interfere with their analyses or conclusions.
8Accordingly, the appeal is dismissed.
"M. Moldaver J.A."
"K. Feldman J.A."
"S.E. Lang J.A."
