R. v. Alvarez; R. v. Grant, 2017 ONCJ 929

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: November 1, 2017

Court File No.: Brampton 16-14396

Between:

Her Majesty the Queen

— AND —

Tesean Alvarez

— AND —

Voshaun Grant

Before: Justice A.R. Mackay

Heard on: May 4 and 5, August 16 and September 11, 2017

Reasons for Judgment released on: November 1, 2017

Counsel

R. Levan — counsel for the Crown

N. Rozier — counsel for the accused Tesean Alvarez

A. Edgar — counsel for the accused Voshaun Grant

MACKAY J.:

Contents

• Introduction
• I. Test For Committal
• II. The Weighing of Circumstantial Evidence
• III. The Intent Required for Attempt Murder
• IV. Nature of the Wounds and Circumstances of the Shooting
• V. Relevant Testimony Called at the Preliminary Hearing
• VI. Agreed Statement of Fact
• VII. Voshaun Grant
• VIII. The Aggravated Assault Count Against Mr. Grant
• IX. List of Additional Charges for which Mr. Grant is Committed to Stand Trial
• X. List of Additional Charges for which Mr. Alvarez is Committed to Stand Trial

Introduction

1This is a ruling on the issue of committal after a preliminary inquiry. A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code.

2Mr. Alvarez and Mr. Grant are jointly charged with several offences as a result of a shooting that occurred on November 17, 2016. A confrontation between the two defendants and Tyler and Shane Bradley ended with Tyler Bradley being shot three to four times. It was unclear from the evidence whether he was shot twice in the stomach. Committal is conceded on all counts except for the attempt murder count with respect to both defendants and the aggravated assault with respect to Tyler Bradley against Mr. Grant.

3I have attempted to address the issues and evidence in the following order:

(i) Test for committal

(ii) The weighing of circumstantial evidence

(iii) The intent required for attempt murder

(iv) Nature of the wounds and circumstances of the shooting

(v) Relevant testimony called at the preliminary hearing

(vi) Agreed Statement of Fact

(vii) Mr. Alvarez

(a) Crown's position

(b) Defence submission

(c) Analysis and conclusion for Mr. Alvarez

(viii) Voshaun Grant

(a) Crown's position

(b) Defence submission

(c) Party liability

(d) Party liability for attempt murder

(e) Analysis for Mr. Grant

(f) Relevant evidence

(g) The aggravated assault count against Mr. Grant

(ix) List of Additional Charges for which Mr. Grant is committed to stand trial

(x) List of Additional Charges for which Mr. Alvarez is committed to stand trial

I. Test For Committal

4In assessing the evidence, I have applied the well-settled rule that a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict (U.S.A. v. Shephard (1976), 1976 CanLII 8 (SCC), 30 C.C.C. (2d) 424). Where the case for the Crown is by way of direct evidence, the judge's task is straightforward. If there is conflict in the evidence, the case must still proceed to trial. The evidence must be weighed in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. However, where the Crown's case is circumstantial, the court must engage in a limited weighing of the whole of the evidence, including the defence evidence, to determine whether a reasonable jury, properly instructed, could return a verdict of guilty. The preliminary inquiry judge does not engage in drawing factual inferences or in assessing credibility. The judge only asks whether the evidence, if believed, could reasonably support an inference of guilt (R. v. Arcuri (2001), 2001 SCC 54 (CanLII), 157 C.C.C. (3d) 21).

5This task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself, but should be seen as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. Dealing with this issue in the context of directed verdicts of acquittal, McLachlin J. (now C.J.C.) reaffirmed what sufficient evidence means in R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, stated, at para. 35:

"sufficient evidence" must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to "sufficient evidence" is incomplete since "sufficient" always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.

6On the ultimate issue of guilt, the Crown bears both burdens. The Crown's persuasive burden on this issue can only be discharged by proof beyond a reasonable doubt. Accordingly, as McLachlin C.J.C. explained in Charemski, the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt.

7Professor Delisle described it in Evidence: Principles and Problems (3rd ed. 1993), at p. 178:

"[l]ogically ... it would seem to be wrong to let a case go to the jury if the trial judge believed that no reasonable jury could be satisfied beyond a reasonable doubt."

David M. Tanovich, "Monteleone's Legacy: Confusing Sufficiency with Weight" (1994), 27 C.R. (4th), at pp. 175-176

(See: Charemski, para. 21)

8The trial Judge must refrain from assessing the credibility of witnesses, weighing the testimony, considering the quality or reliability of the evidence, drawing factual inferences from the evidence, or making any determinations of fact. Those are all functions that are strictly reserved for the trier of fact - in this case, the jury. See United States v. Shephard (1976), 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067 (S.C.C.), at pp. 1079-1080; R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802 (S.C.C.), at pp. 836-845; R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154 (S.C.C.), at p. 160-161; R. v. Morabito, 1949 CanLII 1 (SCC), [1949] S.C.R. 172 (S.C.C.), at p. 174; Charemski, at paras. 2-4; R. v. Abdo, 2016 ONSC 7957.

9In short, the judge asks only "whether the evidence, if believed, could reasonably support an inference of guilt." McLachlin C.J.C. stated, at para. 30 from Arcuri:

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

10Accordingly, at the committal stage of a preliminary inquiry, the trial judge must proceed on the basis that all available reasonable inferences might be drawn in favour of the Crown by the trier of fact. As Doherty J.A. recently stated, in R. v. Jackson, 2016 ONCA 736 (Ont. C.A.), at para. 7:

In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied upon by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769 (Ont.S.C.), at para. 31; and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.

II. The Weighing of Circumstantial Evidence

11There is no direct evidence of Mr. Grant's intent in relation to the events that gave rise to the charges he faces. The Crown relies on inferences to be drawn from a body of circumstantial evidence to establish that he had the necessary mens rea to ground his culpability for attempt murder.

12Justice David Watt, in Watt's Manual of Criminal Evidence (Toronto: Thomson Carswell, 2014) at §9.01, discusses circumstantial evidence and the fundamental requirements of proper inference drawing as follows:

Circumstantial evidence is any item of evidence, testimonial or real, other than the testimony of an eyewitness to the material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue. It is for the trial judge to determine whether circumstantial evidence is relevant.

Where evidence is circumstantial, it is critical to distinguish between inference and speculation. Inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.

III. The Intent Required for Attempt Murder

13The intent required for attempted murder is a very high level of intent, higher than the degree of intent required for actual murder. It is not enough, for attempted murder, that a person intends to cause serious bodily harm that he knows is likely to cause death and is reckless whether death ensues or not. Attempted murder requires a specific intent to kill. (see Ancio)

14In Ancio, the Supreme Court of Canada discussed the subject of the intent required for attempted murder. McIntyre J. wrote at p. 404:

The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent. If there is any illogic in this matter, it is in the statutory characterization of unintentional killing as murder. The mens rea for attempted murder is, in my view, the specific intent to kill. A mental state falling short of that level may well lead to conviction for other offences, for example, one or other of the various aggravated assaults, but not a conviction for an attempt at murder.

15See also in this regard R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 205 C.C.C. (3d) 70 (Ont. S.C.J.) at paras. 23-33.

IV. Nature of the Wounds and Circumstances of the Shooting

16The entirety of the evidence must be assessed in determining whether there is some evidence that a jury could draw a reasonable inference of an intention to kill. This includes the nature of the wounds inflicted by the firearms as well as the circumstances of the shooting.

17In some cases, an inference of an intent to kill can be supported primarily by the nature of the wounds resulting from a gunshot. In R. v. Bains (1985), 7 O.A.C. 67 (Ont. C.A.) at p. 71 Cory J. A. (as he then was) stated:

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. No other reasonable conclusion can be reached: a deadly weapon was used in the very manner for which it was designed - to cause death. It is appropriate to conclude that in these circumstances the gun was fired in order that it might fulfil its design function and kill. An element of surprise arises only if death does not occur.

18However it is not in all cases where a deliberate shooting has occurred that the courts have found evidence of an intention to kill. For example in R. v. Rajanayagam, [2001] O.J. No. 393 (Ont. S.C.J.), affirmed on appeal [2001] O.J. No. 3236. In that case, the evidence revealed that the accused along with several others participated in a gang retaliation attack on a victim. The victim was beaten with a baseball bat. After firing some preliminary shots in the air, the accused with his foot on the prone victim's neck, shot him three times in the upper calf area with a 9 mm semi-automatic pistol.

19At para. 37 Justice Campbell stated as follows:

The wounds were not in or near any vital part of the victim's anatomy nor were the wounds potentially life-threatening. There was no other evidence other than the gunshots from which to infer an intent to kill such as a plan, threat, or motive to kill.

20And at paras. 16-19:

The mere fact that A shoots and wounds V is not, alone, any evidence of intent to kill. For attempted murder there must be some evidence from which the trier of fact may infer that the shooter intended something more than the actual and natural consequence of his wounding act.

Some gunshot wounds, by themselves alone, provide evidence of an intent to kill. Other gunshot wounds do not. If A empties into V's chest a .40 calibre semi-automatic Glock, loaded with expanding dum dum bullets, the shots in themselves provide some evidence of intent to kill. If A shoots V in the hand once with a .22 caliber pistol, the shot in itself provides no evidence of an intent to kill.

It is impossible to draw a bright line in every case between gunshots that provide evidence of intent to kill and gunshots that do not. It is entirely a question of degree having regard to the circumstances including the firearm, the range, the caliber, the load, the projectile, the number of shots, the aim, and the vital or non-vital portion of the anatomy struck by the bullet.

The fact that it is a question of degree and impossible to draw a bright line does not relieve a Court, in deciding whether there is any evidence of intent to kill, of its duty to consider whether in the ordinary course of human affairs a fair inference can arise that the shooter intended to kill and not merely to wound. It does not weigh evidence to say that some gunshots are clearly on one side of the line and other gunshots are clearly on the other side.

21In R. v. LaFleur, [2000] O.J. No. 3961, Justice Then made it clear that a single shot can result in a finding of an intent to kill depending on the circumstances of the case. He held at paras. 16 to 18:

Moreover, the fact of a single shot is not conclusive of an intent not to kill. No doubt the firing of more than one shot would have been more probative of the requisite intent but given the nature and power of the weapon which was fired at close range, the discharge of such a weapon, near the vital areas of the victim, fairly gives rise to an inference of intent to kill when all of the evidence is viewed cumulatively.

In my view, the location of the shot and the firing of a single shot are not in the circumstances incompatible with an intent to kill. These items of evidence were properly viewed as pieces of circumstantial evidence which together with evidence of animus and hostility on the part of the accused toward the victim, the accused's declaration that he was going to stop the victim's transgressions towards him, the deliberate nature of the confrontation wherein the accused had the gun close at hand ready for use, the deliberate nature of the shooting with a powerful weapon at close range including a shot in the mid-section of the body near a vital area constitute the requisite "scintilla" of evidence of intent to kill.

In my opinion, the Provincial Court Judge correctly applied the test in Shephard and I do not propose to interfere. The application is dismissed.

22In R. v. Whittaker, 2007 ONCJ 14, 2007, three individuals inside a bar were hit with bullets in the legs from men shooting into the establishment. Justice Nakatsuru found the following at para. 38:

In the case at bar, an intent to kill cannot reasonably be supported by the nature of wounds that occurred. It is undisputed that the victims were innocent bystanders of the shooting. The fact they were shot or the nature of their wounds provide no basis to infer the intention of the shooters. It just happens in this case that the wounds were not grievous or life-threatening.

V. Relevant Testimony Called at the Preliminary Hearing

23On November 17, 2016, at approximately 4:15 p.m., a shooting took place on a street very close to public school. Sarita Goswami testified that she saw a man shooting a gun while she was leaving from a parent interview at the school with her two daughters. She heard two or three cracker sounds and then saw a man with the pistol and heard approximately three or four more cracker sounds. She saw a small car, possibly silver or grey beside the shooter. The shooter was wearing a hoodie. She believed the man to be holding a pistol. Ms. Goswami did not see where the shooter went but saw a silver car leave after she heard the cracking sound. She ran away with her children on realizing the man had a gun.

24I will not be reviewing the inconsistencies in the evidence of the two major witnesses. It is not the role of a judge presiding at a preliminary hearing to assess the reliability or credibility of the evidence. However, I would note that the core of the Bradley brother's evidence of what took place is consistent. The following was their account of the shooting.

25Tyler and Shane Bradley were in a truck driven by Shane. They were heading to do some errands when they spotted Mr. Alvarez and Mr. Grant walking on foot, close to their street. All men are known to one another. They live in the same area and have known one another for years. Mr. Alvarez and Mr. Grant are brothers and in the past have attended at the Bradley's garage. The defendant's appear to be in their 20s while the Bradley's are in their 50s.

26Mr. Alvarez and Mr. Grant began to have a verbal argument with either Tyler or Shane Bradley. Tyler stated the defendants were arguing with his brother whereas Shane said the defendants were arguing with Tyler. Tyler believed that the defendants were trying to lure him over to where they were standing across the street. Shane stopped the truck to let his brother argue with the defendants. Tyler and Shane are not consistent on whether Tyler got out of the truck once or twice.

27Tyler described the defendants as calling or waiving Tyler over to them. Shane stated that Mr. Alvarez was calling both him and his brother over. Tyler got out of the truck and grabbed a baseball bat from the back. He began to walk towards the defendants with the bat dragging behind him. Tyler stated that he had also started to mouth off to the defendants, he grabbed the bat because he felt threatened.

28Shane noticed that Mr. Alvarez and Mr. Grant had guns so he told his brother to get back in the truck. Tyler also saw a handgun. Neither of the men could really describe the guns other than to say they had handguns. Shane saw the men pull out the guns from behind their backs. Tyler turned around and started walking back to the truck. When he turned around Mr. Alvarez began shooting at Tyler.

29After his brother was shot Shane, saw a bullet ricocheted off the ground and hit the tire of his truck. Shane jumped out of the truck and ran towards Mr. Alvarez saying "you are killing my brother," "I am killing you." Mr. Alvarez dropped the gun and jumped into a silver car. Prior to dropping his gun, Mr. Alvarez had a look of shock or surprise on his face. Mr. Grant came up behind Mr. Alvarez, said to his brother, "What the fuck are you doing?" and picked up the gun. Both Grant and Alvarez waived the silver car over. Mr. Grant was shooting at Shane at this time as well. Mr. Grant also jumped in the silver vehicle before it sped off.

30Shane believed that Mr. Alvarez shot his brother four times and that Mr. Grant shot at him twice. They were shooting at the same time. Shane believed that he was grazed by a bullet on his arm. It did not register with Shane that Mr. Grant had shot at him until he saw bullets ricocheting off the ground. Shane Bradly stated that Mr. Alvarez was at most about 50 feet from his brother when he shot him and that Mr. Grant was standing approximately 10 feet away from Mr. Alvarez.

31With each witness, diagrams were presented and each witness marked where the defendants and where the Bradleys were standing. The evidence of the distance between the parties varied throughout the witnesses' evidence.

32When Shane saw his brother fall to the ground he got out and ran towards Mr. Alvarez. He estimated his brother had fallen down about 30 feet in front of his truck.

33He then ran over and helped Tyler up and walked to the truck. Tyler got into the truck and he passed out. Shane then called 9-1-1.

34Shane described both Mr. Alvarez and Mr. Grant as holding out their guns with one hand, their arms stretched out, aiming at his brother and at him.

35Tyler advised that he was shot in the hand and elbow, the left upper arm and twice in the stomach. At the time of the preliminary hearing he could not use his hand and given the infection in his arm and the lack of circulation Mr. Bradley may have to have his arm amputated. He had a number of surgeries on his stomach.

36Immediately after Tyler was shot, he saw the defendants head towards a silver car. After Tyler was shot he turned around and was facing them and was shot again. He believed he was almost at the truck when he was shot and had tossed the bat in the bed of the truck. Tyler heard the sound of the gun go off and then saw the flash from the gun. He did not see Mr. Grant's gun. When he turned around Mr. Alvarez was the only person he saw shooting.

37Tyler believed he was shot three times but the doctor told him he was shot four times. Shane believed his brother was shot four times. When Tyler was shot they were not talking. He believed he was shot when he threw the bat in the truck. Shane believes that he picked up the bat and threw it in the truck but later said he was not sure.

38When Tyler Bradley first saw the defendants, their hoodies were up. He could see Mr. Alvarez's tattoo. This was how he could tell the brothers apart. Tyler remembered thinking that it was strange that the defendants had their hoods up as it was not cold outside. The defendants were walking beside the Bradleys' vehicle at one point.

VI. Agreed Statement of Fact

39Subsequent to the shooting, police attended at the location of the shooting and recovered a spent bullet and three spent shell casings. The projectile and casings were sent to the Centre of Forensic Science for analysis.

40On November 18, 2016, arrest warrants were issued for Mr. Alvarez and Mr. Grant. Both men were later arrested on the same day.

41Mr. Alvarez was located outside of 92 Arizona drive in Brampton. Police subsequently obtained a search warrant for this address and conducted interviews with the people in the home. The occupants advised that the defendants were not residents of that address but they had slept there on couches located on the main floor of this residence. Police subsequently obtained a search warrant and located at .40 calibre Smith & Wesson handgun tucked behind a cushion on one of the couches where the occupants told police the defendants had slept.

42The firearm seized from the residence was tested by the Centre for Forensic Science (CFS). The testing involved a comparison of spent projectiles and shell casings recovered from the scene. The CFS report concluded that the testing of the Smith & Wesson .40 Calibre hand gun recovered from 92 Arizona Drive, indicates that "to a practical certainty," it fired the spent projectile found by police at the intersection of Morton Way and Morton Way on November 17, 2016.

43The clothing of both the defendants were seized after they were arrested and submitted to the CFS. After testing it was determined that gunshot residue was found on Mr. Alvarez's jacket.

VII. Voshaun Grant

A. The Crown's Position

44The Crown submits that Mr. Alvarez ought to be committed on attempt murder for the following reasons:

(1) The circumstances of the evidence speak to planning:

(a) Mr. Alvarez and Mr. Grant attempted to lure Tyler over to them when they had concealed loaded handguns;

(b) The defendants were angry with Tyler and his brother Shane;

(c) They made some attempt to hide their appearances by having their hoodies pulled up; and

(d) A car was waiting to pick them up immediately after the shooting and they fled the scene.

(2) Mr. Alvarez pointed and aimed his gun at Tyler Bradley and shot him three to four times.

(3) The area of the wounds on Mr. Bradley and the number of shots fired should lead to a conclusion that there was an intention to kill. The gunshot wound to the stomach is a vital part of the anatomy. A common sense inference arises that Mr. Alvarez wanted to kill Tyler Bradley.

B. Defence Submission

45For the purposes of the preliminary hearing, Ms. Rozier submitted that it has been established that Mr. Alvarez shot Tyler Bradley. Further, she is conceding there is sufficient evidence to commit Mr. Alvarez on all charges before the court with the exception of the attempt murder against Tyler Bradley. She submits that her client should not be committed on attempt murder but on aggravated assault for the following reasons:

(i) The only evidence to establish the intentionality of Mr. Alvarez is circumstantial.

(ii) The circumstances the defence points to that do not suggest an intent to kill are the following:

• Mr. Alvarez was across the street from Tyler Bradley when he shot at him. He may have been anywhere from 50 to 100 feet away.

• The facts speak to a desire to commit an act of violence but nothing more.

• Although the Crown argues that Mr. Bradley was shot in a major part of the anatomy, an intention to kill cannot be made out from this type of wound. A shot to the head or to the heart would make such an intention clear. Other than the one or two wounds to the stomach, the wound to the hand and the elbow do not support an intention to kill as it is unlikely that they would result in death.

• While there was evidence that the defendant was pointing at Mr. Bradley there was no evidence that Alvarez was aiming at any particular part of the body.

• Tyler Bradley was moving when he was being shot and the shots were fired in quick succession. It was not a situation where Mr. Alvarez had time to reset his position prior to each shot. The witnesses did not speak about seeing a "ratcheting back." Counsel submits the weapon is likely a semi-automatic weapon. It should be noted that the gun found the next day where Alvarez and Grant slept was a .40 calibre Smith & Wesson handgun. A forensic test determined to a "practical certainty" it fired the bullets at the crime scene.

• There was no evidence of any serious issues or animus between the parties.

C. Analysis and Conclusion for Mr. Alvarez

46It was the evidence at the preliminary hearing that Mr. Alvarez and his brother, Mr. Grant attempted to engage the Bradleys in a confrontation and call them out of their truck. They were armed with loaded handguns and had their heads covered with hoodies. Once Tyler Bradley observed that Mr. Alvarez was armed he attempted to retreat. Mr. Alvarez shot Tyler Bradley while his back was turned. When Tyler turned around after he was hit, Mr. Alvarez shot him two or three more times. The shooting came to a stop when Shane Bradley ran towards him yelling "you are killing my brother" Mr. Alvarez dropped his gun and then fled in a car he had waived over. Tyler Bradley was shot in his stomach possibly twice, near vital organs. He was also shot in his elbow and his hand.

47A jury could properly infer that Mr. Alvarez and his brother had planned to lure the Bradleys out of their truck, that they intentionally attempted to conceal their identity and that Mr. Alvarez was aiming at Mr. Tyler Bradley's torso to kill him and further that they had a gateway car waiting to take them away immediately after the shooting.

48Given all of the evidence I have heard at the preliminary hearing it is my view that there is sufficient evidence to commit Mr. Alvarez for attempted murder. I find that the Crown's case taken at its highest is reasonably capable of supporting an inference that Mr. Alvarez intended to kill Tyler Bradley and it would be open to a jury to find him guilty of this offence beyond a reasonable doubt. There are other inferences to be drawn and defence counsel, Mr. Rozier, quite rightly pointed to these other inferences and to weaknesses in the crown's case. There will at trial no doubt be issues with respect to the credibility and reliability of the witnesses. My role is not to assess the credibility of the witnesses. At trial Mr. Alvarez will be entitled to put the Crown to the very high burden of proving his guilt beyond a reasonable doubt. However, I am the preliminary hearing judge and I am required to assume those reasonable inferences which are most favourable to the Crown.

VII. Voshaun Grant

A. The Crown's Position

49In addition, to the charges contained in the information, the Crown seeks committal on:

• point firearm, contrary to s. 87 of the Code,

• discharge with intent, s. contrary to 244(1) of the Code,

• careless use of a firearm contrary to s. 86(1) of the Code, and

• attempt bodily harm in relation to Shane Bradley contrary to s. 269 of the Code.

50The Crown submits that Mr. Grant ought to be committed on the attempt murder count against Tyler Bradley on the basis that he was a party to the offence. Similarly, Mr. Grant should be committed on the aggravated assault count. Mr. Edgar conceded that there was evidence of an attempt to cause bodily harm on Shane Bradley, contrary to s. 269 of the Code and conceded the additional gun charges the Crown sought committal in relation to Shane Bradley. There was evidence that Mr. Grant shot at Shane Bradley and grazed or scratched his arm with a bullet.

B. Defence Submission

51Mr. Edgar concedes committal on all charges before the court except the attempt murder and the aggravated assault with respect to Tyler Bradley.

52Mr. Edgar argues that there is no evidence that Mr. Grant intended to kill anyone. Further, there is no direct or circumstantial evidence to support an inference that Mr. Grant was a party to the offence of attempt murder nor is there evidence which would support the inference that he was aware that Mr. Alvarez meant or intended to cause death to Tyler Bradley.

53The height of the Crown's case establishes only that Mr. Grant had the intention of committing a violent act alongside his brother.

54Shane Bradley testified that Mr. Grant shot at him two times. One bullet hit the ground, one hit his tire and grazed his arm. If it was Mr. Grant's intention to assist Mr. Alvarez he could have shot at Tyler Bradley. Mr. Edger submitted that all evidence points to the fact that the bullets fired from Mr. Alvarez gun struck Tyler Bradley and not Shane. Mr. Grant was firing at the same time, simultaneously at Shane Bradley. He argued that Mr. Grant shooting Shane Bradley did not assist Mr. Alvarez in attempting to kill Tyler Bradley. Mr. Grant's act of shooting Shane Bradley was an independent act.

55Both counsel argued that given the position of the men, Mr. Grant was standing closer to Tyler Bradley but shot at Shane Bradley.

56There was no direct evidence that Mr. Grant saw that Mr. Alvarez shot Tyler Bradley at least three or four times.

C. Party Liability

Was Mr. Grant a party to the attempt murder?

57The party liability provisions of the Code are set out in section 21:

(1) Everyone is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or,

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

58Justice David Watt's Manual of Criminal Jury Instructions, 2nd Ed., (Toronto: Thomson Reuters Canada Ltd., 2015) summarizes party liability as follows:

In Canadian criminal law, principals, co-principals, aiders and abettors of criminal offences are all equally culpable. This means that, in Canada, the distinction between those who personally commit an offence and those who aid or abet the offence is legally irrelevant. All are equally culpable in the eyes of the law.

D. Party Liability for Attempt Murder

59A party must have knowledge of the intention of the principal to commit murder, not just to commit some other violent offence. Objective foreseeability of death or injury is not enough to found liability: R. v. Adams, 1989 CanLII 7161 (ON CA), [1989] O.J. No. 747 (Ont. C.A.). Objective foreseeability of death as a result of the actions of the accused is not enough for a conviction for attempted murder: R. v. Jeffrey (1989), 35 O.A.C. 321 (Ont. C.A.).

60In R. v. Fatima, (2006), 2006 CanLII 63701 (ON SC), 42 C.R. (6th) 239, [2006] O.J. No. 3633 (Ont. S.C.J.) Watt J. (as he then was) observed that an inference of pre-concert may be noted from the circumstances. He stated at paras. 56-57:

It is worth recall that an accused may participate in an offence, including murder, in different ways. As a sole or joint principal. As an aider or abettor. Or as a party to a common unlawful purpose in the execution of which murder by another is a reasonably foreseeable consequence.

In some instances, there may be no evidence that shows or tends to show the precise role played by each of two persons jointly charged. An inference of concerted or pre-concerted action may be drawn from the circumstances, for example, where the persons charged had exclusive custody and control over the deceased . . . And where there is evidence of concerted action, a trier of fact may adjudge all guilty either as principals or as aiders or abettors, even though the extent of individual participation in the fatal violence is unclear . . . [citations omitted]

61In R. v. Bailey, 2017 ONSC 1672 the defendant drove a group of men to a location where they fired several shots to individuals outside a townhouse. Mr. Bailey was not a shooter but he kept the car waiting, foot on the break, not in park awaiting for the men to return to the vehicle after the shooting. Once the shooters got in he attempted to get away.

62Justice Goldstien in concluding that the preliminary hearing judge correctly committed the defendant for trial on attempt murder as a party held the following at para. 17:

In my respectful view, there is evidence to support the preliminary inquiry judge's finding that would be open to a jury that the driver of the getaway car was privy to that plan. That is so when the manoeuvring and the waiting is taken into account. If there are competing inferences to be drawn, then they must be drawn in favour of the Crown: R. v. Sazant, 2004 SCC 77 (CanLII), [2004] 3 S.C.R. 635 (S.C.C.) at para. 18. The Crown's case, taken at its highest, was reasonably capable of supporting an inference that Mr. Bailey was aware that the plan was to carry out a targeted killing. In my respectful view, the preliminary inquiry judge made no jurisdictional error in this regard.

E. Analysis for Mr. Grant

63Is the circumstantial evidence sufficient enough from which a jury properly instructed could find beyond a reasonable doubt that Mr. Grant knew Mr. Alvarez intended to kill Tyler Bradley?

64To prove Mr. Grant's guilt on the charge of attempted murder, the Crown must establish that Mr. Grant knew that Mr. Alvarez intended to kill Tyler Bradley and he intended to help or encourage Mr. Alvarez to do so.

65A knowledge only of Mr. Alvarez intention to commit an act of violence is not sufficient to sustain a conviction.

F. Relevant Evidence

66The Crown's evidence taken at its highest establishes the following. While Mr. Alvarez was shooting Tyler, Mr. Grant fired two shots at Shane Bradley when he came out of his truck to help his brother. An inference can be drawn that Mr. Grant was firing at Shane Bradly so that he would not stop the shooting of his brother by Mr. Alvarez. Further, a strong inference can be drawn that Mr. Grant saw Mr. Bradley get hit with bullets and yet continued to shoot his own handgun.

67The high level of accuracy of the shots fired support an inference that Mr. Alvarez was aiming at Tyler Bradley's body. Four shots were fired and four shots entered Tyler Bradly's body. He had two wounds to his stomach.

68The facts disclose that Mr. Alvarez and Mr. Grant acted in unison. They attempted to get the Bradleys out of their truck; they both began to shoot when Tyler Bradley retreated to his brother's truck. Mr. Alvarez shot at Tyler Bradley and Mr. Grant shot at Shane. They called over the silver car. Mr. Grant picked up his brother's gun after he dropped it, jumped into the waiting silver car and fled the scene. A reasonable inference to draw is that Mr. Grant was aware that his brother intended to kill Tyler Bradley and that he was assisting his brother in doing so.

69As was similarly found in Bailey, based on the assistance Mr. Grant provided to Mr. Alvarez both before, during and after the shooting, there is circumstantial evidence that he knew his brother intended to kill Tyler and that he was a party to that offence.

70For attempt murder the requisite intention to kill, can be inferred from circumstantial evidence of conduct. I find that the inferences the Crown submits can be drawn from the circumstantial evidence are reasonable and not mere speculation. A jury properly instructed could draw the inference that Mr. Alvarez intended to kill Tyler Bradley and that Mr. Grant knew of his brother's intention and attempted to assist Mr. Alvarez in carrying out this act.

71Mr. Alvarez and Mr. Grant were standing only ten feet apart while they were firing their guns. The shooting occurred over a matter of seconds. A jury properly instructed could infer that Mr. Grant saw that his brother was shooting Tyler with an intention of killing him and fired at Shane Bradley to prevent him from stopping Mr. Alvarez in carrying out his intention. A jury could find that the shooting only stopped because Shane Bradley intervened. I find that there is sufficient evidence that a jury properly instructed could find Mr. Grant guilty of attempt murder beyond a reasonable doubt.

72Clearly, there are a variety of other reasonable inferences and logical conclusions that a reasonable jury, properly instructed, might draw from the evidence that I have outlined. Both Ms. Rozier and Mr. Edgar made compelling arguments on behalf of their clients which could negate a finding of attempt murder. I have not heard any defence evidence and certainly expert evidence will shed more light on what transpired on the day in question. I am certain that the credibility and reliability of the Crown's witnesses will be challenged at trial.

73If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt. (See: Abdo.) I must notionally accept the credibility of the evidence relied upon by the Crown and assume the reasonable inferences from the primary facts that are most favourable to the Crown (See: Jackson).

VIII. The Aggravated Assault Count Against Mr. Grant

74The defence argues with respect to the aggravated assault there is no evidence that Mr. Grant's bullets struck Tyler Bradley. There is no evidence he is a principal to the offence of aggravated assault. His submissions are the same with respect to his clients' liability as a party. Essentially counsel argues that his client acted independently. Further, the picking up of Mr. Alvarez's gun after the shooting did nothing to aid in the aggravated assault. I find for the same reasons as outlined with respect to the attempt murder count that there is sufficient evidence capable of supporting a finding beyond a reasonable doubt that Mr. Grant acted as a party with respect to the aggravated assault count.

75As indicated earlier Mr. Grant is committed on the following charges in relation to Shane Bradley:

• attempt to cause bodily harm contrary to s. 269 of the Code,

• point firearm contrary to s. 87 Code,

• discharge with intent contrary to s. 244 (1) of the Code, and

• careless use of a firearm contrary to s. 86 of the Code.

76Mr. Grant is also committed to stand trial on the following charges:

IX. List of Additional Charges for which Mr. Grant is Committed to Stand Trial

Count	Charge	Contrary to the following Sections of the Code
1.	Did attempt to murder Tyler Bradley	s. 239(1)
2.	Aggravated assault on Tyler Bradley	s. 268(1)
3.	Possession of a weapon, to wit: a firearm	s. 88(1)
4.	Possession of a firearm, to wit: hand gun, without being the holder of a license under which he may possess it	s. 91(1)
5.	Possession of a firearm, to wit: hand gun, knowing that he was not the holder of a license under which he may possess it	s. 92(1)
6.	Possess a prohibited firearm together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or license under which he possessed the said firearm in that place	s. 95(1)
7.	Without lawful excuse, point a firearm, to wit: hand gun at Tyler Bradley	s. 87
8.	Possession of a restricted weapon, to wit: hand gun without a license	s. 91(2)
9.	Possession of a restricted weapon, to wit: hand gun without a license	s. 91(2)
10.	Was an occupant of a motor vehicle, to wit: a 4 door sedan in which he knew that there was at that time a firearm to wit: a hand gun	s. 94
11.	Possession of a firearm while he was prohibited from doing so by reason of an order made pursuant to s. 110 of the Criminal Code, at Brampton on December 17, 2015	s. 117.01(1)

X. List of Additional Charges for which Mr. Alvarez is Committed to Stand Trial

Count	Charge	Contrary to the following Sections of the Code
1.	Did attempt to murder Tyler Bradley	s. 239(1)
2.	Aggravated assault on Tyler Bradley	s. 268(1)
3.	Possession of a weapon, to wit: a firearm	s. 88(1)
4.	Possession of a firearm, to wit: hand gun, without a license	s. 91(1)
5.	Possession of a firearm, to wit: hand gun, knowing that he was not the holder of a license under which he may possess it	s. 92(1)
6.	Possess a prohibited firearm together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or licence under which he possessed the said firearm in that place	s. 95(1)
7.	Without lawful excuse, point a firearm, to wit: hand gun at Tyler Bradley	s. 87
8.	Possession of a restricted weapon, to wit: hand gun without a license	s. 91(2)
9.	Possession of a restricted weapon, to wit: hand gun without a license	s. 91(2)
10.	Was an occupant of a motor vehicle, to wit: a 4 door sedan in which he knew that there was at that time a firearm to wit: a hand gun	s. 94
11.	Possession of a firearm while he was prohibited from doing so by reason of an order made pursuant to s. 110 of the Criminal Code, at Brampton on November 24, 2015	s. 117.01(1)