Reasons for Committal
Ontario Court of Justice Central West Region Brampton, Ontario
Between:
Her Majesty the Queen
-and-
Nathan Bell, Brian Nelson, Gary Hoffman, Emmanuel Bowes-Serrata and Andrew Ramdass
Before: Duncan J.
Facts and Charges
1The defendants (except Ramdass) are jointly charged with manslaughter in the death of Madad Kenyi on September 24, 2015. Ramdass is now charged with aggravated assault but the Crown seeks his committal on manslaughter.
2Two of the accused, Bell and Bowes-Serrata have conceded committal and have already been sent to the trial court. The three remaining accused argue against committal.
3Mr Kenyi died as a result of blunt force trauma to his head suffered in the course of an altercation involving himself and a number of other men. There is evidence that all the accused were among that number. One of them struck Kenyi in the head with a thick branch or stick.
4The Crown's case relies on the evidence of 5 civilian witnesses to the event. All the witnesses and the accused know each other. They are all part of a group of mature adults, at least in age, who frequent a green space park area behind the beer store at the Westwood Mall in Malton. There they hang out, drink and consume drugs.
5The witnesses were all under the influence of alcohol and some were under the influence of drugs as well when they witnessed the altercation. Most gave evidence that conflicted with earlier statements that they had given to police. The evidence was for the most part confusing, contradictory within itself and conflicting from one witness to another. The trier of fact will be greatly challenged in this case.
Legal Analysis: R v Arcuri
6The primary argument of each defendant is to this effect: the decision to commit requires consideration of the exculpatory evidence as well as the inculpatory evidence. With respect to each accused the exculpatory evidence is substantial while the inculpatory evidence is weak – in many instances it is "outlier" evidence that is inconsistent with much of the rest. Accordingly, consideration of "all of the evidence" as required by the Criminal Code should result in a discharge.
7Similar arguments to this are frequently presented to this court at the conclusion of preliminary inquiries when it is contended, often correctly, that the Crown case is weak. Reliance is placed primarily on R v Arcuri, 2001 SCC 54, [2001] 2 SCR 828. Given the persistence of the argument and its importance in this case I will deal with Arcuri in some detail because, with respect, it is my view that this submission is a misinterpretation and unjustified extension and application of that case.
The Arcuri Facts and Decision
8The facts and evidence in Arcuri are important in determining exactly what was decided. Arcuri was charged with murder. The Crown's case was completely circumstantial. The deceased Mora, a friend of Arcuri had last been seen in Arcuri's company at around 11:30 am. His body was found in the trunk of a car at the side of a rural road at 4 pm. At around 2 pm, on another nearby country road, a farmer noticed a man stop his somewhat distinctive looking car, get out and throw what turned out to be a pile of clothes into the ditch. Those clothes had Mora's blood on them and were linked to Arcuri by his DNA, size and similarity to other clothing that he owned. Arcuri also owned a car of similar description. Interestingly, in relation to the present case, the farmer identified another man, not Arcuri, as the man he had seen. At the preliminary, the defence called witnesses, Michel Fiorillo and Carmelo Suppo, who said that they saw Arcuri under innocent circumstances up to 11:30 and again around 2 pm, significantly narrowing his opportunity to have committed the murder or to have been the one dumping the clothing.
Key Propositions from Arcuri
9The unanimous Supreme Court of Canada affirmed and clarified the following propositions:
(i) The Shephard test for committal - whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty - is the law in all cases whether the evidence at the preliminary is direct or circumstantial. (para 22)
(ii) The Justice cannot discharge if he considers the evidence to be weak or even very weak. (para 33)
(iii) The Criminal Code requires the Justice to consider the whole of evidence - including exculpatory evidence. (para 32)
(iv) In the case of direct evidence, the only issue is whether the evidence could be found by a jury to be true. (para 22, 32). Accordingly, if there is sufficient inculpatory evidence to meet the test for committal, as a practical matter, even though it must be considered, the presence of exculpatory evidence cannot change the committal decision. (para 32)
(v) In the case of circumstantial evidence, the further issue is whether the evidence is reasonably capable of supporting the inferences that the Crown seeks to have drawn. This requires a limited weighing of the evidence to assess that issue. (para 23)
(vi) In circumstantial cases, exculpatory evidence must be included in this assessment. (para 34).
Limited Weighing in Circumstantial Cases
10In my view the limited weighing referred to in point (v) above means no more than that the body of circumstances must be sufficiently probative to reasonably support the inference to be drawn.
11For example, if the description of a masked robber was that he was six feet tall, white and made his get-away in a black Toyota, evidence that the defendant possessed those characteristics would clearly be too commonplace and indefinite to support an inference that he was the robber. But if other circumstances, or even a single distinctive circumstance were added – say, the robber and the defendant both had an anchor tattoo on his arm – the totality of circumstances would be much more probative of the inference of identity and the judge on the preliminary would have to consider whether it was sufficient to meet the test for committal. In my view this is the limited weighing that the Court in Arcuri is referring to as being necessary and unavoidable in cases of circumstantial evidence.
The Role of Exculpatory Evidence
12So where do exculpatory circumstances fit in? What role can they play? In my view, for the following reasons, they can only play a role when they are not credibility-dependent, that is, when they are substantially "un-rejectable" to perhaps coin a word.
13Logically, it can't be otherwise – because it is beyond controversy that a jury can accept some all or none of the evidence before it – and therefore could reject any piece of exculpatory evidence or all of it. So, if a case consisted of circumstantial pieces of evidence ABCD, where D was exculpatory and the rest were inculpatory, the committing judge must consider whether it would be open to a jury to reject D - and be left with only ABC upon which its inferences depended. It therefore can be seen that if D is capable of being rejected, it becomes irrelevant to the committal decision. As with exculpatory direct evidence, (para 9 item iv supra) it cannot alter the committal decision if the balance of the evidence (ABC) can support the inculpatory inference.
14The only exception to this – and the only practical role for exculpatory evidence to play – would be where the exculpatory evidence could not reasonably be rejected by the jury. This would be rare – maybe even inconceivable since some fanciful shade could be thrown on almost any piece of evidence – hence the need for the "reasonableness" qualification. Examples of reasonably un-rejectable evidence would be Mssr. Chartier's "fine head of hair"[1] or the blood in the snow in Mullings[2], or if the defendant in my example above did NOT have a tattoo.
15But most pieces of circumstantial evidence are not of this character. Rather, although they are circumstantial in that they speak indirectly to the point in issue, they are rooted in and dependent upon the accuracy and honesty of witness testimony. Which brings me back to Arcuri and what I suggest is the often overlooked and important concluding passage that I believe supports my thesis:
As to the appellant's argument that Lampkin Prov. J. did not place sufficient weight on the absence of evidence of opportunity, I note that there was no independent evidence as to the accused's whereabouts between the hours of about 11:30 a.m. and 2:00 p.m. The evidence of the accused's whereabouts before and after those times came from Michael Fiorillo and Carmelo Suppo. This evidence was of course testimonial, and its credibility was therefore a matter for the jury. (bolding added)
Application to Present Case
16The exculpatory evidence relied upon in argument is this case is all of this character. Indeed much of it is not circumstantial at all but rather is direct observation by eye witnesses. This evidence is very much dependent on an assessment of credibility both for its inculpatory and exculpatory value. It is, as per Arcuri above "therefore a matter for the jury".
Conclusion
17All accused are committed to stand trial on manslaughter.
March 29, 2017
B Duncan J.