R. v. Hassan Adam, 2022 ONCJ 103

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 therefore is made by the prosecutor, and

( b ) shall, if application therefore 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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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 — Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

At the outset of the preliminary hearing, I imposed a publication ban on the publication of these proceedings, the evidence and allegations received, the submissions made, and these reasons, pursuant to s. 539 of the Criminal Code. For clarity sake, this does not prohibit reproduction of these reasons by a legal journal or reporting service.

Ontario Court of Justice

Date: 2022 02 17 Court File No.: Brampton 20-4522 and 20-4501

Between:

HER MAJESTY THE QUEEN

— AND —

ZAKARIA HASSAN ADAM, ABDIKADIR ABDI, and MOHAMED SHOKRI

Before: Justice P.T. O’Marra

Heard on: August 16, 17, 18, 19, 20, 23, 24, 26, 27, 30, and October 13, 18, 19, 20, 21, 22, and November 17, and December 22, 2021.

Oral Reasons for Judgment on Committal released on: February 17, 2022.

Counsel: C. Nadler and P. Renwick, counsel for the Crown M. MacGregor, counsel for the defendant Zakaria Hassan Adam J. Goldlist, counsel for the defendant Abdikadir Abdi E. Ghebrai, counsel for the defendant Mohamed Shokri

P.T. O’Marra, J.: (Orally)

Introduction and Overview

1This case is about the heartbreaking death of Jordan Henry shortly before midnight on New Year’s Eve, December 31st, 2019. According to Mr MacGregor and Mr Ghebrai, there is enough circumstantial evidence to commit Mr Hassan Adam and Mr Shokri to stand trial for the charge of second-degree murder. On the other hand, the Crown submits that there is enough evidence for a reasonable jury properly instructed to find that Mr Hassan Adam was a party, as the driver, to a planned and deliberated murder of Jordan Henry. Furthermore, the Crown submitted that Mr Shokri was the shooter in the planned and deliberate murder of Mr Henry.

2Mr MacGregor conceded that Mr Hassan Adam was the driver of the Pontiac G6 that evening. However, he did not concede that there was enough evidence Mr Hassan Adam had any knowledge of a plan and deliberate murder.

3Mr Ghebrai conceded that Mr Shokri was at the party, but not there was not enough evidence that he was inside the Pontiac G6 before, during or after the shooting.

4The Crown and Ms Goldlist conceded that there was not enough evidence to commit Mr Abdi to stand trial for first degree murder. Therefore, with the parties’ consent Mr Abdi should be committed to one count of second-degree murder.

5Jordan Henry died from a single gunshot wound to his head outside of a New Year’s Eve house party located at 49 Alderbury Crescent, in the City of Brampton. He was shot and collapsed on the driveway. After being moved from the driveway to the kitchen, police and paramedics arrived. He was found without vital signs on the kitchen floor of the residence. Mr. Henry was pronounced dead by paramedics at 12:18 am. His family and friends have had to cope with the shocking and untimely loss of someone that they loved and cherished. Mr. Henry was 17 years old. Sadly, the preliminary inquiry process does not have a mandate to deal with his family’s anguish and heartache. It is only a screening tool.

6It was alleged that the defendants attended the New Year’s Eve party. Just before midnight, Mr Shokri (aka Uzi) was involved in an altercation that may or may not have involved a stolen chain. His friend, Mr Abdi (aka AK) was also present. Mr Shokri and Mr Abdi left the party. As part of the Crown’s theory, it was suggested that Mr Henry was grabbed by Mr Shokri during the altercation. As a result, Mr Shokri was removed from the party and not permitted to return.

7A few minutes later, four successive gunshots were directed towards the front of the residence from a white Pontiac G6 vehicle driven by Mr Hassan Adam. A group of individuals were outside of the residence. Mr Henry was struck in the head by one bullet. The Pontiac G6 fled but collided with a parked vehicle approximately 100 metres up the street from the party. The vehicle was abandoned, and the rear passenger side door was left ajar and the window was down. Witnesses told the police that gun smoke came from the open rear passenger window.

8Several items were found in and around the Pontiac G6 which were forensically tested. DNA profiles were obtained on those items. Mr Hassan Adam and Mr Shokri cannot be excluded from the DNA profiles that were developed.

9The Pontiac G6 was registered to Mr Hassan Adam’s girlfriend, Rukhshar Wahab. Ms Wahab and Ms Ibrahim were at a Shisha lounge earlier that evening. Mr Hassan Adam texted Ms Wahab after the shooting and asked her to report her car stolen. Ms Ibrahim drove Ms Wahab to an address in Hamilton to meet Mr Hassan Adam. Eventually Ms Ibrahim, Ms Wahab and Mr Hassan Adam went to a hotel that morning in Mississauga. Police contacted Ms Wahab at the hotel. They checked out of the hotel and dropped Mr Hassan Adam at an apartment building in Mississauga.

10Ms Wahab was charged with accessory after the fact because of her attempts to assist Mr Hassan Adam after the murder.

11Mr Abdi attended the Four Points Hotel and met Ms Kefte. Eventually he was picked up from the hotel.

12Mr Shokri was arrested on January 6, 2020 on unrelated matters. However, his phone was seized and eventually search warrants were obtained in relation to this murder investigation.

Position of the Parties:

The Crown’s position on Mr Hassan Adam:

13The Crown submitted that Mr Hassan Adam was a party to a planned and deliberate murder. He had the knowledge or was wilfully blind to the plan and the intentional killing of Mr Henry. There was sufficient evidence that Mr Hassan Adam was aware that Mr Shokri, as a principle was going to shoot Mr Henry or a class of people over the altercation.

14As the driver, Mr Hassan Adam carried out the role of driving Mr Shokri around the block to locate Mr Henry and then drove Mr Shokri away after the shooting.

15Even if I cannot find direct evidence of his knowledge, the Crown argued that I can infer from the ring camera video that Mr Hassan Adam must have sensed something but did not enquire. (See: R. v. Briscoe, 2010 SCC 13, para. 25).

16The Crown relied on the following evidence that a jury could find that Mr Hassan Adam was an aider to the murder:

• The ring camera conversation would have been audible to all three occupants of the Pontiac G6. The conversation established the only reason that the three men returned to the party, was the altercation that led to Mr Shokri being removed from the party.
• Mr Hassan Adam followed the direction of the individual that said that they should spin the block and return to the party.
• Mr Hassan Adam slowed down the Pontiac G6 near or in front of 49 Alderbury Crescent for the shots to be fired and then sped away.
• Since Mr Hassan Adam was a friend of Mr Shokri there was a reasonable inference that both he and Mr Abdi would have knowledge that Mr Shokri was in possession of a firearm. The fact that Mr Shokri told Angelique Derouin-Johnson that he had a gun made this inference more reasonable.
• Mr Hassan Adam was aware that the altercation involved a chain, given his conduct after the shooting including his flight alone in a taxi. This imputed that he had knowledge before the shooting.
• Mr Hassan Adam’s after the fact conduct including his continued contact with Mr Shokri and Mr Abdi within 40 minutes of the shooting, his effort to arrange transportation for Mr Abdi, his flight from the hotel immediately upon learning that the police were looking for Ms. Wahab was supportive of an inference that Mr Hassan Adam had before hand knowledge of intended criminal act and assisted in its commission.

17Finally, the Crown argued that in the context of the altercation over the chain, the statement captured on the ring camera video, then the act of shooting was consistent with Mr Hassan Adam’s knowledge of Mr Shokri’s intention to cause bodily harm to likely cause death by Mr Shokri, should be enough evidence to commit him to stand trial as a party to first degree murder.

The Crown’s position on Mr Shokri:

18The Crown submitted that there was sufficient evidence to establish the following:

• Mr Shokri came to the party with a firearm. His statement to Ms. Derouin-Johnson was evidence that he had it in his possession near or around his waist and was prepared to use it.
• Mr Shokri had an altercation over a chain that he had stolen at the party. He left or was forcible removed from the party with Mr Hassan Adam who was aware of the altercation.
• At least two of the three defendants discussed a plan to find the person that ran from them and then returned to the party after “spinnin (sic) the block”.
• Mr Shokri’s satchel was in the rear of the vehicle.
• There was some resemblance between the individual that dragged Mr Shokri out of the party and Mr Henry.
• Tionna Hall had observed Mr Shokri with an angel pendant on a chain similar to the one that Ms Derouin-Johnson described. Ms Hall was not certain if she saw Mr Shokri wearing the angel pendant the morning after the shooting when he arrived or later that day.

19The Crown argued that there was sufficient evidence upon which a jury could find that Mr Shokri shot Mr Henry in furtherance of a plan to seek revenge for the altercation that he had at the party. Inside the Pontiac G6 Mr Shokri’s DNA was located on the satchel that the police found in the rear seat. Smoke was observed to come from the right rear passenger window, which was down when police arrived. Two shell casings were found behind the right passenger seat on the floor. The right passenger window was rolled up. There was evidence that Mr Shokri was in possession of a handgun at the party.

20The Crown submitted that when the Pontiac G6 returned to the party, slowed down at the residence, paused for approximately three seconds before the gun shots were heard on the ring camera video, the rapid acceleration of the vehicle from the shooting, supports a jury finding that there was an intention to fire in a discriminate manner. According to the Crown, it did not matter whether Mr Shokri’s intention was to fire directly at Mr Henry, or at another person, or a class of persons that were standing outside of the residence, as this was an intentional act to cause bodily harm that was likely to cause death.

21The essential pieces of evidence that supported planning and deliberation, the Crown submitted was the ring camera video coupled with the motive. The plan was articulated by the individuals on the audio portion as they entered the Pontiac G6, to set out to locate the person that just ran by. There was a reasonable inference that this person, according to Ms. Drouin-Johnson, was the same person that she witnessed forcibly removed Mr Shokri from the party. Another person that entered the vehicle stated that they intended to return to the party after they “spin(sic) the block”. The video established that the vehicle left, or was out of sight for several minutes, until it returned with its occupants for Mr Shokri to exact his revenge once that person was located at or near the party.

Mr MacGregor’s position on behalf of Mr Hassan Adam:

22As already mentioned, Mr MacGregor has conceded that Mr Hassan Adam was the driver of the Pontiac G6 that evening. However, he argued the evidence fell short of establishing that Mr Hassan Adam had sufficient knowledge of planning and deliberation and was a party to the commission of the offence.

23He maintained that there was no proof that Mr Hassan Adam was speaking on the ring camera surveillance video.

24Mr MacGregor submitted that “spinning the block” was reasonable to assume that they were looking for the person that fled the party, however, there was an evidentiary gap as to what occurred in front of the house seconds after the Pontiac G6 returned and the shots being fired. In other words, there could have been an act or series of acts that provoked or instigated the shooting which would negate planning and deliberation.

25Mr Hassan Adam’s post-offence conduct of flight and disposing of any evidence did not logically connect to any planning and deliberation before the commission of the criminal act. Specifically, Mr MacGregor argued that Mr Hassan Adam’s effort to have a neighbour call a taxi for him was not a reasonable inference that he had knowledge of a plan. Moreover, the post-offence conduct was indicative of a reaction to the shooting not suggestive of knowledge of a plan.

26Mr Hassan Adam did not have any connection to Mr Henry. Nor was there any evidence that Mr Hassan Adam had any idea where to drive to after the shooting.

27Mr Hassan Adam’s conversation with Ms Wahab urging her to report her car stolen and to delete their text messages would have been more persuasive evidence inferring planning and deliberation if that conversation occurred in advance of the shooting not afterwards.

Mr Ghebrai’s position on behalf of Mr Shokri:

28As previously mentioned, Mr Ghebrai conceded that there was sufficient evidence to establish that Mr Shokri was inside the residence of the party. However, despite the connection with the Mr Hassan Adam and Mr Abdi and the forensic evidence, the evidence fell short in establishing that Mr Shokri was indeed inside the Pontiac G6 at the time of the shooting.

29The DNA on the Hennessey bottle and box, the cigarette butt and a satchel in the rear seat only suggested that at some point in time Mr Shokri had contact with these items but did not tie him to occupancy and control over the Pontiac G6.

30Mr Ghebrai submitted that there was a reasonable inference that Mr Abdi may have returned to the vehicle from the party with the items Mr Shokri had contacted and placed them inside.

31Furthermore, there was no evidence that Mr Shokri was ever inside the vehicle before the party. No witness testified nor was there any surveillance video that established that Mr Shokri was an occupant in the vehicle.

32There was no evidence that he entered the vehicle when the vehicle was driven around the block. Mr Ghebrai submitted that the ring camera surveillance video showed three people near the car but only two persons entered the vehicle.

33There was no evidence that Mr Shokri was seen with Mr Hassan Adam and Mr Abdi after the shooting. Despite the fact there was some evidence that Mr Shokri and Mr Hassan Adam had interacted together, did not mean that they arrived together to the party.

34The subject matter of the altercation was the snatching of the chain. However, Mr Ghebrai argued that this theory was based on rumour and speculation. The witnesses never testified that they saw that a chain was taken. The narrative and the misinformation about the chain was propagated by the police, which found its way onto social media.

35In Ms Derouin-Johnson’s statement to the police five months later, which she disavowed to a certain degree, she did not describe seeing a firearm at the party nor did she believe that Mr Shokri had a firearm with him just an object that resembled one.

36It was unlikely that Mr Shokri brought a firearm into the party since according to several witnesses everyone was thoroughly searched for weapons.

37Mr Hall testified that she saw Mr Shokri when they came home. She never saw Mr Shokri with a firearm.

38The cellphone records only confirmed that the defendants talked after the shooting but was not evidence that established Mr Shokri was involved in the shooting.

39Mr Ghebrai submitted that there was no evidence tendered by the Crown that identified Mr Shokri’s voice in the audio from the ring camera surveillance.

40If the court was satisfied that there was sufficient evidence for a jury to find that Mr Shokri was inside the vehicle and the shooter, Mr Ghebrai maintained that there still was insufficient evidence for a jury to find that Mr Shokri planned and deliberately murdered Mr Henry.

41He argued that this was a drive by, not a targeted, shooting where four indiscriminate shots were fired from a handgun, which has a notorious reputation for a lack of precision and accuracy.

42Mr Ghebrai submitted that there was no direct evidence of an altercation at the party that involved Mr Shokri. It made no sense that if he stole the chain why would return to the party with a plan to shoot Mr Henry.

43Mr Ghebrai agreed that any of Mr Shokri’s post offence conduct, the car crash, the flight, reporting the car stolen, conversations were purely reactionary rather than indicative of advance planning and deliberation of a murder.

44Therefore, like Mr Abdi, Mr Shokri should be committed to second degree murder, on the basis that there was sufficient evidence for a jury could find that the defendants intended to cause Mr Henry bodily harm, and knew that was likely to cause his death, and was reckless whether death ensued of not.

The Law

The Test for Committal at a Preliminary Hearing:

45Section 548(1) of the Criminal Code provides that an accused shall be committed to trial, following a preliminary inquiry, if there is enough evidence and shall be discharged if, on the whole of the evidence, "no sufficient case is made out." The question that must be asked is "whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty." (See: United States of America v. Sheppard, [1977] 2 S.C.R. 1067) Where there is direct evidence as to every element of the offence, the accused must be committed to trial. Where there is no direct evidence as to every element of the offence, the court must engage in a limited weighing of the evidence in the sense of assessing whether it is reasonably capable of supporting the inference that the accused committed the offence. The question to be asked is whether the evidence, if believed, could reasonably support an inference of guilt. (See: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828)

The Treatment of Circumstantial Evidence:

46Since planning and deliberating involve a mental process, in almost all cases where a jury is required to reach a conclusion as to whether or not a murder was planned and deliberate on the part of the accused, it must reach a conclusion on the basis of evidence which is circumstantial. (See: R. v. Mitchell, [1964] S.C.R. 471 p. 5)

47In R. v. Papadopoulos, [2004] O.J. No. 2766 Justice Durno outlined a very helpful approach for a preliminary hearing judge’s task of treating circumstantial evidence. At paragraphs 47-54 he stated the following:

47 Where the evidence is circumstantial in regard to some elements of the offence, the judge's task is different. The question is whether the elements the Crown seeks to establish by circumstantial evidence may reasonably be inferred from the circumstantial evidence. It requires the judge to engage in a limited weighing of the circumstantial evidence, to determine whether it is capable of bridging the inferential gap between the evidence and the matter to be established, whether it is reasonably capable of supporting the inferences the Crown will ask the jury to draw. This is a distinct question from whether or not the evidence should be believed. The judge neither determines if the accused is guilty, draws factual inferences, nor assesses credibility. The only question the judge asks is whether the evidence, if believed, could reasonably support an inference of guilt. The jurors determine if the inference is to be drawn from the facts: Arcuri, supra, at para. 23.

48Notwithstanding that Arcuri referred to whether or not the evidence is reasonably capable of supporting the inferences the Crown will ask the jury to draw, I am not persuaded the preliminary inquiry judge is restricted to examining only the inferences the Crown suggests should be drawn. While in the majority of cases the Crown will argue all the potential inferences a jury could draw, juries are not routinely instructed that they may only draw inferences which have been suggested by the prosecution. They are instructed on the law regarding circumstantial evidence including the differences between inferences and speculation. Crowns argue that accused persons should convict based on the inferences to be drawn from all of the evidence. There may be inferences open to be drawn which are not argued. Accordingly, a judge presiding at a preliminary inquiry may examine inferences which have not been suggested by the prosecution. The issue of whether counsel must be given an opportunity to address those issues will be addressed later in the judgment.

49Where the Defence introduces exculpatory evidence, the test remains the same. If the Crown has led direct evidence, then there must be a committal for trial, since the only remaining issue is whether that evidence is believed; that is the jury's task. Where all or part of the Crown's case consists of circumstantial evidence, the judge engages in the limited weighing of all the evidence presented, including the exculpatory evidence introduced by the Defence, to determine whether a reasonable jury, properly instructed could return a verdict of guilty: Arcuri, supra at para 29. While Arcuri dealt with witnesses called by the Defence, there is no reason why the same principles should not apply where the exculpatory evidence is introduced as part of the Crown's case, either through examination-in-chief or cross-examination.

50In doing the limited weighing, the judge does not draw inferences from facts, assess credibility, or consider the inherent reliability of the evidence itself. Rather, it is an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. The test is whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt.

51The preliminary inquiry judge considers the Crown's case at its highest. Any reasonable interpretation or permissible inference from admissible evidence, beyond conjecture or speculation, must be resolved in favour of the prosecution: R. v. Coke, [1996] O.J. No. 808 (Gen. Div.)(QL). In addition, the preliminary inquiry judge is required to consider the cumulative effect of the evidence. It is improper to isolate each piece of circumstantial evidence and examine it, without regard to the context of the totality of the evidence: Coke, supra at para. 9.

52Even where a witness gives conflicting evidence in examination-in-chief and cross-examination, there must be a committal for trial: R. v. Walizadah, [2002] O.J. No. 2833 (S.C.J.) (QL). A jury may believe all, part of, or nothing a witness says: R. v. Hansen, [1980] O.J. No. 591 (H.C.J.) (QL).

53Not surprisingly, where the evidence in regards to elements of an offence is circumstantial, much of the argument dealt with whether the committing justice was dealing with competing inferences, equivocal evidence, or no evidence. Included in the arguments were submissions as to whether a witness's evidence was clarified in cross-examination or whether it was changed, and the legal implications of both conclusions.

54In Coke, Hill J. summarized the approach to circumstantial evidence at para. 10 - 11: Not infrequently, it is submitted by an applicant seeking to quash a committal order that other explanations or inferences, inconsistent with guilt, but equally consistent with innocence, can be rallied to counter the theory submitted by the Crown. This approach risks usurpation of the jury function. Such submissions are, at times, divorced from the context of the whole of the evidentiary record. The extent of weighing evidence for the justice is directed to the presence of any evidence, not the reconciliation of contradictions or competing inferences.

It is not a legitimate exercise of judicial discretion for a preliminary inquiry justice to ignore the incriminatory probative value of an item or chain of related items of evidence simply because an equally permissible inference accords with an innocent interpretation. Certainly, where the evidence in question is equivocal, in the sense of ambiguous and uncertain and conjectural in nature, the probative force is of such diminished significance as to be valueless.

(Emphasis in Original)

The Drawing of Inferences versus Speculation:

48In assessing circumstantial evidence there is an important distinction between “permissible inferences” and “impermissible speculation.”

49“Watt’s Manual of Criminal Evidence”, 2019 ed., at page 50:

Where evidence is circumstantial, it is critical to distinguish between inference and speculation. An 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 which a party seeks to establish. If there are no positive proven facts from which an inference can be drawn, there can be no inference, only impermissible speculation and conjecture.

50Understanding this distinction is critical in this case. The Crown's case is almost entirely circumstantial. In the exercise of the limited weighing referred to in Arcuri, the reasonableness of any inference depends on, and in the context of, an assessment of the whole of the evidence. The inference must also be reasonable based on common sense and human experience.

51But no matter how well a theory based on speculation and conjecture may seemingly connect certain events, without proof of positive proven facts from which an inference can be drawn, there can be no inference, only speculation and conjecture. (See: R. v. Richardson, 2017 CarswellOnt 23807, paras. 18 and 19)

Planned and Deliberate First-Degree Murder:

52Section 231 of the Criminal Code classifies two types of murder. It reads:

(1) Murder is first degree murder or second-degree murder.

53Subsection (2) of that section says this:

(2) Murder is first degree murder when it is planned and deliberate.

54Planning and deliberating are two distinct elements. Planned is to be assigned its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequence of which have been considered and weighed. The plan does not need to be complicated nor complex. It may be very simple. The critical consideration is the time involved in developing the plan, not necessarily the time between the development of the plan and carrying out the act. One can carefully develop the plan, and then immediately set out to do the planned act, or, alternatively, one can wait an appreciable time to commit the act after the plan has been already formed. (See: R. v. Widdifield, (1961), 6 Crim. L. Q. 152 (Ont. H.C.J.) at 153 and Papadopoulos, para. 71) Planning in this context requires evidence that the killing was the result of a scheme or design previously formulated. A murder committed on a sudden impulse and without prior consideration will not meet the test. (See: R. v. Smith, (1979, 51 C.C.C. (2d) 31, Sask. C.A))

55The word “deliberate” has been given its natural meaning of considered, not impulsive, slow in deciding and cautious, implying that the accused must take time to weigh the advantages and disadvantages of the intended action. (See: Widdifield, and Papadopoulus, para. 72.)

56In R. v. Briscoe, at para. 175, the Alberta Court of Queen’s Bench defines, (for the purpose of first-degree murder), planned as meaning “arranged beforehand”:

A person plans a (sic) murder if he forms in advance a design or scheme to murder. ‘Planned’ does not mean the same thing as ‘intentional’. A person can intentionally kill another person without having planned to do so in advance. The plan can nonetheless be simple. ‘Deliberate’ means ‘carefully thought out’. It means the opposite of hasty, rash or impulsive. A person who deliberately commits murder does so after thinking about it with some care. They commit murder after real consideration. It is not deliberate if the murder is committed on the spur of the moment, suddenly or impulsively under the influence of some emotion or passion.

57A jury that is considering a planned and deliberated killing should be directed to consider all of circumstances that go into the planning and deliberation, including not only how an accused did or did not do it, but what the accused said or did not say, the condition of the accused’s state of mind as affected by either real or imagined insults and provoking actions of the deceased and evidence of the accused’s impairment by the consumption of alcohol or drug or diminished mental capacity. (See: Mitchell, p. 4)

58As the act and the surrounding circumstances are revealed by the evidence, it is for a jury, properly instructed that could infer “planning and deliberation” as understood by the law. Whether such inference will be drawn, or whether such evidence is to be believed, are issues for determination by the jury and not by the judge presiding over a preliminary hearing. (See: R. v. Chabot, [1978] O.J. No. 1283 (H.C.))

Parties to Murder

59To be convicted as a party, an accused must have the intention that the deceased should be killed or suffer bodily harm of a kind likely to result in death, and yet proceeded despite knowledge of that risk. (See: R. v. Kirkness, [1990] 3 SCR 74, at para. 62)

60A party to a murder must be a participant in the murder. To be a participant, the accused must do something that caused the death or do something for the purpose of helping another to do something that caused the death. It is not necessary to determine the level or exact nature of the participation. (See: R. v. Portillo, [2003] O.J. No. 3030 (CA), at para. 71.)

61There must be some evidence to support the inference that (1) the party knew the principal intended to murder the deceased, (2) that the party intended to, and did in fact aid or abet them in doing so, and (3) that the murder was to the party’s knowledge, planned and deliberate. (See: R. v. McIntyre 2012 ONCA 356, [2012] O.J. No. 2375 (C.A.), at para. 15., R. v. Almarales, 2008 ONCA 692, [2008] O.J. No. 3937 (C.A.), and R. v. Phillips, 2017 ONCA 752, [2017] O.J. No. 5022 (C.A.) (paras. 193-198))

62While the principal’s intention to kill must be known to the party, it need not be shared. The party needs to know about the principal’s intent to commit the crime, and act with the intention of assisting the principal in its commission. (See: Phillips, at para. 198.)

63The party also need not actually participate in the planning and deliberation. They only need to have known about, adopted, and executed the plan. (See: R. v. Trudel, [2004] O.J. No. 248 (C.A.), at para. 159).

64Finally, the Court of Appeal has described the nature of the act required, and the fact that the party does not need to have a causative role in the commission of the offence. Any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists, or encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime. (See: R. v Dooley, 2009 ONCA 910, leave denied [2010] S.C.C.A. No. 179 (SCC)).

Motive:

65The presence of motive is a factor which can be taken into consideration at a preliminary hearing. It is a factor the jury would be permitted to consider along with other circumstances. (See: Papadopoulos, at para. 82)

After the Fact Conduct:

66Evidence of "post-offence conduct" is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person, and inconsistent with the conduct of an innocent person (See: R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.)). Evidence of "post-offence conduct" should not be put to the jury unless it is relevant to the determination of a live issue in the case (See: R. v. Thurston, [2001] O.J. No. 1401 (Ont. C.A.)) Where "post-offence conduct" evidence is admitted, the jury must be properly instructed to ensure the evidence is not misused. Their focus should be kept on the specific items of evidence, and the relevance of those items to the ultimate issue of guilt or innocence (See: R. v. White and Cote (1998), 125 C.C.C. (3d) 385 (S.C.C.)).

67Whether the jury should consider "post-offence conduct" is determined by the facts in each case. The threshold question is what does the Crown seek to prove by means of the evidence? In this case, the Crown points to post-murder conduct as some evidence of planning and deliberation.

68There is no legal impediment to using after-the-fact conduct evidence in determining the accused’s intent. The jurisprudence of the Supreme Court clear: after-the-fact conduct evidence may be relevant to the issue of intent and may be used to distinguish between different levels of culpability. (See: R. v. Calnen, 2019 SCC 6, [2019] 1S.C.R. 301 para. 119) The Court in referring to threshold reliability of after-the-fact conduct reminded that it is the function of the trier of fact what inference is accepted and the weight to be given to it and “for the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role” (See: R. v. White, [1998] 2 S.C.R. 72 para. 27 and Calnen, para. 124)

69As in all cases that engages post-offence conduct evidence, the strength of the inference will be determined by the nature of the conduct, what the Crown seeks to be inferred from the conduct, the parties positions and the totality of the evidence. If the totality of the evidence satisfies the chain of reasoning for a particular inference, then the inference is available to the jury, regardless of whether supporting physical evidence is part of the evidentiary record. (See: R. v. Smith, 2016 ONCA 25 para. 77 and Calnen, para. 135)

70As Justice Doherty stated in the R. v Mackinnon and R. v. Poitras decisions, the probative value of the post-offence conduct will depend upon the nature of the evidence and context. It may have no probative value in determining the accused’s level of culpability. But sometimes, human experience and common sense may be capable of supporting an inference that the accused had a particular state of mind including murder. (See: R. v. MacKinnon, [1999] O.J. No. 346, para. 14 (C.A.); R. v. Poitras, [2002] O.J. No. 25 (C.A) and R. v. White and Cote (1998), 125 C.C.C. (3d) 385 at 400-403 (S.C.C.)) Evidence of after the fact conduct, considered in its entirety can support the inference that the parties did exactly what they intended to do. (See: MacKinnon, at paras. 552-3.)

71Justice Watt in the decision of R. v. Fatima, [2006] O.J. No. 3633, at paras. 66-67 cited with approval passages from the Mackinnon and Poitras decisions regarding the use of post-offence conduct to support the inference of a state of mind for a murder that was planned and deliberate. However, he stated that those authorities do not suggest, that there must also be evidence of pre-offence conduct to support an inference of planning and deliberation before reliance may be placed on the post-offence conduct to establish an earlier state of mind that including planning and deliberating.

The Evidence at the Preliminary Hearing:

72The Crown filed an extensive application pursuant to section 540(7) of the Code to adduce evidence. Counsel consented to its introduction on the basis that certain witnesses would be available for cross-examination. The material that was filed contained the following:

• Phone records from Production Orders associated to cell numbers for Mr Abdi, Ms Wahab, Mr Shokri and Ms Kefte.
• Phone extractions from cell numbers associated to Mr Hassan Adam, Ms Wahab and Mr Shokri.
• The GPS locations of Mr Hassan Adam, Mr Abdi, and Ms Kefte’s phones.
• Four biology reports from the Centre of Forensic Science, dated April 9, June 2, September 30, 2020, and March 26, 2021.
• Fingerprint reports including a friction ridge analysis report and photographs of Mr Abdi’s fingerprint on a glass bottle dated February 1, 2020, a friction ridge analysis report of Mr Shokri’s fingerprint on the Hennessey box dated January 16, 2020, and a friction ridge analysis report of Mr Hassan Adam’s fingerprint from a plastic bag dated January 16, 2020.
• A video surveillance timeline.
• Additional surveillance still photographs. These included the following: Mr Hassan Adam leaving 181 John Street, Hamilton in a white Pontiac G6 on December 31st, 2019, to Brampton. Mr Hassan Adam leaving Brampton on December 31, 2020, in a 7-11 Taxi. Ms Ibrahim, Ms Wahab and Mr Hassan Adam at the Mississauga Inn on January 1, 2020. Prior to his arrest, Mr Hassan Adam in a Hamilton Taxi on January 2, 2020.
• A Post-mortem Report.
• Photographs from the evening of the homicide, the search warrant, outside of the residence during the evening and daylight hours, a red solo cup, a projectile, a water bottle, the search executed on the Pontiac G6, and the items seized from 185 Mary Street, Hamilton on January 2, 2020.
• Surveillance videos stored and filed on a USB.

73The Crown brought a further application seeking to admit Ms Derouin-Johnson’s statement to police under s. 540(7) and s. 540(9) of the Code, shortly before the commencement of the preliminary hearing. During Ms Derouin-Johnson’s preparation interview she disavowed two key portions of her original statement.

74Ms Derouin-Johnson was an integral witness to the Crown’s case. There were portions of her statement that no other witness could corroborate. These portions were critical to the Crown’s case as it related to Mr. Shokri. The Crown’s desire to seek a ruling was borne more out of practicality then necessity.

75Mr Ghebrai hotly contested the introduction of the statement on the basis that it was not credible and nor trustworthy, specifically, there were serious concerns about the procedural and substantive reliability of Ms. Drouin-Johnson‘s statement.

76After I considered all the circumstances and counsels’ submission, I ruled that I was satisfied on a balance of probabilities that Ms. Drouin-Johnson’s video statement was credible and trustworthy. Ms Drouin-Johnson was available for cross-examination.

77In addition to the 540(7) application, the Crown called 26 witnesses.

78The Crown's case relies on circumstantial evidence to establish the necessary elements of first-degree murder for each defendant. It rests on what is submitted are reasonable inferences which arise from facts upon which there is direct evidence.

Facts Supported by Direct Evidence:

79It is necessary for me to set out the facts upon which there is direct evidence so that the reasonable inferences which arise from them can be understood. Where there is contradictory or ambiguous evidence, or evidence that requires knowledge of its source to be properly understood, I will describe or quote the evidence and include its source.

80I do this with the caveat that I must accept the credibility of this evidence. I am not permitted to determine whether it is credible or reliable or is likely to be accepted by a reasonable jury properly instructed. Where there is contradictory evidence or evidence capable of supporting more than one reasonable inference, I must take the Crown case at its highest.

A. The Afternoon of December 31, 2019 - Before the New Year’s Eve Party at 49 Alderbury Crescent, Brampton

81A group of young women learned about a house party in Brampton. The party was advertised on social media.

82They were from Hamilton. The group included the following: Beverly Soun, Chanel Smith, Angelique Derouin-Johnson, Kiarra Springer, Legeset Kefte, Kedrea Bond’s friend, Zoe Blackwood. The original plan was to go Toronto, but the plans changed, and they decided to attend the New Year’s Eve Party.

83Ms. Derouin-Johnson and Ms. Kefte knew Mr Shokri as “Uzi”, and Mr Abdi as “AK”. Ms Derouin-Johnson was not expecting to see Mr Shokri at the party that evening. Unbeknownst to Ms Derouin-Johnson, Ms Kefte had invited both Uzi and Ak to the party.

84Ms Smith picked up Ms Soun, Ms Bond and Ms Blackwood and they drove to Ms Drouin-Johnson’s apartment. They waited in the lobby and few minutes later Ms Kefte and Ms Derouin-Johnson came down. Then the group drove to Ms Smith’s residence. Ms Bond, Mr Drouin-Johnson’s friends carpooled with Ms Smith’s boyfriend, Ethan Bunbury who had a car. According to Ms Soun, Mr Bunbury brought one or two friends with him. (see Transcript August 16, 2021, page 59, line 1) According to Ms Blackborrow, the car that she was in driven by Mr Bunbury picked up another male in Mississauga on their way to Brampton. Both vehicles drove in tandem and arrived at the party at approximately 11:20 am. Both vehicles parked near the house. The occupants of both vehicles went into the party as a group.

85The street had artificial lighting, however, by most accounts it the lighting was dim around the house.

B. The New Year’s Eve Party at 49 Alderbury Crescent, Brampton:

The Entry, Security, and Atmosphere of the Party:

86Meshach Brown, and his family resided at 49 Alderbury Crescent, in Brampton. He lived there with his mother, his brother, his 18-year-old son, Jahsiaha. Mr Brown agreed to hold a house party for his son to celebrate New Year’s Eve.

87Upon entering the house, Meshach Brown, his son, Jahsiaha and his son’s girlfriend, Shauntel Clarke conducted an extensive body pat down security check for weapons, drugs, etc. Guests’ bags and purses were checked. Mr Brown patted down the male guests and the female guests were checked by Ms Clarke.

88The furniture had been removed. The living room, located at the front of the house faced Alderbury Crescent and was designated area for dancing, mingling, drinking or just standing around to listen to music.

89A DJ booth with large speakers was set in the corner of the living room. Naturally the music was very loud and thumping with lots of flashing lights. The house was very dark. Facial features were hard to make out. The party had the atmosphere of a crowded and loud night club.

90There was a room down the hall that was reserved for smoking that contained a black light.

91Alcohol was sold at the party from a table set up near the front entrance and the kitchen. However, the group of females brought in and shared a bottle of Ciroc Vodka. A few shared a joint outside the party in the car.

The Altercation at the Party and Ms. Derouin-Johnson’s Conversation with Mr. Shokri:

92After the group was cleared to enter the party, Ms Soun, Ms Drouin-Johnson, Ms Bond, Ms Kefte and Ms Blackborrow went to the washroom. After they left the bathroom, they moved to the middle of the living room. According to Ms Soun, Ms Smith and Mr Bunbury and his friend remain close to the bathroom. (Transcript dated August 16, 2021, page 81, line 5-8)

93Ms Blackborrow testified that after they went to the washroom she stood with Ms Bond, Ms Smith, and Ms Soun in the living room and shared the bottle of vodka. She recalled that the two males remained with Ms Smith. Ms Blackborrow did not witness any altercation inside the house.

94Ms Kefte testified that at approximately 11:30 pm she and Ms Drouin-Johnson were greeted by Mr Abdi (aka “AK”) and Mr Shokri. (Transcript dated August 19, 2021, page 76, lines23-24.)

95Ms Kefte attended the same high school as Mr Abdi, and grew up with Mr Shokri, in Hamilton. Ms Kefte saw Mr Hassan Adam (aka “Zac”). However, she did not speak to him. After that moment, Ms Kefte did not see the three males in the party again. But shortly after that she heard a “muffled” argument or commotion over the music. At this point the music stopped and the DJ said something. She did not see who was involved in the commotion, nor how many people were involved.

96Ms Drouin-Johnson was interviewed by police and provided a video recorded statement. As previously I stated, I ruled that her original statement was admissible.

97In her statement, Ms. Drouin-Johnson stated that “Uzi” grabbed her buttocks. She also described a conversation she had with Uzi. In that conversation, Uzi told her that he had "jammed" a chain from someone. He described that someone as “some waste man.” (page 49 of her statement) Ms Drouin-Johnson also told the police that Uzi placed her hand on something in his waistband, which she believed was either a knife or a gun, "It's okay 'cause I got it on me.”

98In preparation for the preliminary hearing, Ms Drouin-Johnson was interviewed on August 4, 2021 in the Crown Attorney's office in Brampton. In her second statement, she confirmed the veracity of her May 8th, 2020, statement, apart from the following two details: Firstly, that Uzi grabbed her buttock or touched her in any way. And secondly, that she saw or felt anything on anyone's waistband.

99Ms Drouin-Johnson was interviewed at a Hamilton police division approximately five and a half months after the murder. She described how her, and her friends attended a house party in Brampton. Upon their arrival, they were searched by security and paid the door fee. They entered the living room with no furniture. There were approximately 20 people at the party. It was very dark, but there were flashing lights and music was playing. Near the end of the hallway, she observed two males she recognized from Hamilton. She did not know their real names, only their nicknames, Uzi and AK. She provided vague descriptions of both males.

100Ms Drouin-Johnson recalled her conversation with Uzi. He had a chain hanging around his neck which appeared to have a pendant on it (page 25 of her statement). He remarked that he jammed the necklace from another young male, which she interpreted as being stolen. Uzi told her that he took it from some guy. A couple of minutes later, a younger dark-skinned guy grabbed Uzi. They went outside.

101About whether Ms Drouin-Johnson felt anything on Mr Shokri’s hip that evening, in cross-examination she stated the following:

No, not that I remember. I can't recall. No, and I never, never felt anything. (August 20, 2021, page 29, lines 26-27)

102When specifically asked if she may have felt a weapon that night, she responded unequivocally “no.”

103In her statement, Ms Drouin-Johnson told the police that Uzi was involved in an altercation while speaking to her that resulted in his exit from the party. (pages 22-23 of her statement) She also mentioned that the person that grabbed Uzi during the altercation was “same guy…that was lying outside the front door after the shooting.” (page 48 of her statement)

104Ms Drouin-Johnson stated that before Uzi and the other male went outside, Uzi grabbed AK.

105At page 40 of the interview, the officer asked her if Uzi had shown her a gun, which she replied that he had not. Then the officer asked her, "Did Uzi tell you to feel on his waistband or his arm?" She replied that he asked her to feel something on his waistband. She vacillated on whether the object felt like a pocketknife or a gun. She stated that it “felt hard, like a rock” or kind of felt thick.” Before she felt the object, he said to her, "I got it on me.”

106Jahoiah Sewell did not personally know any of the defendants. However, she testified that she attended the party with her friend, Lily Han. During the party and close to midnight they were in the blue light room when a male teenager who appeared to be bi-racial (mixed with white and black or black and Indian) asked her name. He wore a black “puffer” jacket. He said that he was from Hamilton. He had short, curly, messy hair. He was taller than Ms Sewell, who was 5’3” tall.

107Ms Sewell testified that after their brief conversation the young male touched her waist and said that he would be back. She witnessed the young male get into an argument with another person and there was a commotion that lasted 30 seconds to a minute. During the argument she recalled the you male lifted his shirt. He was escorted out of the party by the “security guard that was at the front of the house”. (August 21, 2021, para. 55, line15) After that the music was turned down and back up after the DJ told everybody to calm down.

108Ms Sewell testified that she went outside of the house to call her mom just before midnight. She witnessed the security guard with dreadlocks in an argument at the front door with a male that wanted to get back into the party.

109Ms Han testified that when her and Ms Sewell were in the black light room there were males passing around a bottle of Hennessy. Ms Han spoke to one male with braids. He wore a black belt with a Gucci belt buckle and a black puffer jacket. He was 17-19 years old and was approximately 5’ 6”. He gave her his Snapchat username - Jerry Awesomeness.

110Ms Han testified that after they left the black light room, she and Ms Sewell went to the living room to dance. Ms Sewell left to call her mother and returned shortly. They started to dance, then they heard the gunshots and ran into two separate rooms.

111When Ms Drouin-Johnson stood with their friend, Ms Kefte in the living room, Ms Drouin-Johnson stated that suddenly the living room was, "getting shot open.” After she heard gunshots, she was ushered to a bathroom and then fled outside.

112The music was suddenly turned off and the tenant, Mr Brown everyone to “chill and it’s all good vibes.”

113Jhaylin Murray and Javon Myles attended the party together. They witnessed the dispute during the party over someone’s chain being stolen. The same male was involved in an argument with Mr Brown outside. Based on the male’s body language he was “showing aggression” while speaking to Mr Brown and his son. Both witnessed this male running past everyone earlier and out the door. Mr Murray believed at the time that he was the person that had stolen the chain. He recalled that he wore a white sweater, a do rag and Gucci belt and shoes. There were conflicting clothing descriptions from Mr. Murray. Which, of course that is not for me to resolve.

114The male eventually left the argument and entered the white car with two other males. These other two males were kicked out of the party. The car drove away and within approximately five or six minutes there were gunshots. Mr Murray testified that he was the white car crash into the parked car.

The Gunshots:

115According to Ms Blackborrow after the music was turned on, 5-10 minutes later there were four shots coming from outside of the house on the street. Robert Dobslaw, a residence that lived in four houses away from the party heard four-gun shots at 11:57 p.m.

116Many visitors thought the successive bangs sounded like fireworks since it was approaching midnight. Mr Blackborrow witnessed the flashes heard a loud bang near the window.

117The house party erupted in pandemonium and chaos after the shots were rang out. Many were pushed into the bathroom and the kitchen. Many fled outside.

118Mr Brown was standing in his front doorway when he observed the white car approaching the front of his house and noticed that the rear passenger window down. He thought it was odd that the window was down. Then he heard three to four gunshots, and smoke came from the same rear passenger window that was down. The car sped away.

119Mr Brown told everyone to leave the house immediately, as the party was over. He went back outside and found Mr Henry on the driveway.

Jordan Henry:

120Mr Henry arrived at the house party with his high school friend, Tristen Wilson just before midnight.

121Mr Wilson testified that he was outside when he heard the shots were fired and saw a white car drive away. He hid beside a vehicle on the driveway. Mr Wilson noticed that both windows on the passenger side of the white car may have been down.

122Mr Wilson ran around the side of the house and entered a side/back door to look for Mr Henry. Mr Wilson exited the front door and found Mr Henry lying on the driveway non-responsive. He and Jahsiaha Besley-Brown carried Mr Henry into the kitchen and laid him on the floor. He did not see any blood until he moved his hoodie and saw brain matter and blood on Mr Henry’s hoodie.

123He was shot in the back of his head and collapsed on the driveway. He was carried to the kitchen and was left there when paramedics and police arrived.

The Shooting and the 51 Alderbury Eye Ring Doorbell Camera Video Surveillance:

124As part of the police investigation, the police obtained the video recording of the Ring doorbell camera from the residence next door to 51 Alderbury Crescent. At 11:47:33 p.m. the individuals entered the Pontiac G6 and two distinct voices were heard. One male stated, “he ran past both of us, he just ran right by me bro, look what he fuckin’ did to you.” The second male voice immediately stated, “you my nigga we’re spinnin’ the block we’re comin’ back eh?” The first male responded, “He’s running on foot this way.” At this point the three individuals approach the driver’s side, the front passenger and rear driver’s side of the Pontiac G6.

125At approximately 11:56 p.m., the Pontiac G6 approached from left side of the video from, slowed down and disappeared out of the video to the right. Approximately three seconds elapsed prior to four gunshots, and then the sound of the car’s acceleration, followed by the screeching of tires and the collision into the parked car.

126At 11:57:05, the music stopped.

127At 11:59:56, people start running away from the house.

The Aftermath of the Shooting in front of 49 Alderbury Crescent: The Car Crash, a Stranger Visits Himani Arora and Nirman Kad’s Residence at 91 Avondale Boulevard for a Taxi:

128The shots were fired from the Pontiac G6 the vehicle drove away but crashed into the rear end of E. Bryan-Bolton’s parked car a few houses up from the party.

129Himani Arora and Nirman Kad, lived 91 Avondale Boulevard, in Brampton, a street over from the house party. They were celebrating New Year’s Eve and having dinner with friends, when just after midnight, their doorbell rang twice. A young black male was at their front door. He asked Ms Arora to call a cab for him despite that he was holding a cellphone in his hand and was scrolling throw it. Mr Kad noticed that male was nervous and in a hurry. Mr Kad described the black male as approximately 5 ‘6” or 5’ 7” with a skinny build. He had a little bit of facial hair. He wore baggy pants, an open jacket and a hat like a beanie or toque. Mr Kad told the male that they did not have the number for a cab and the male ran off.

130Ms Arora described that the black male as medium height 5’ 7’ or 5’8” wearing all black clothing, and something covering his head. He had an African accent.

The Shisha Lounge, Nosrah Ibrahim and Rukhshar Wahab, the Text Messages, Mary Street, in Hamilton, and a Visit to a Mississauga Hotel:

131Ms. Wahab and Mr Hassan Adam had a on and off again intimate relationship for approximately four years. According to Ms Wahab they were broken up on December 31, 2019. Ms Wahab was the registered owner of the Pontiac G6 involved in the shooting. That evening Ms Wahab was aware that Mr Hassan Adam’s possession of the vehicle.

132Ms Ibrahim lived in Kitchener. Ms Wahab lived in Hamilton. At the time they were good friends. Since the shooting and the subsequent police investigation they are no longer friends.

133On December 31, 2019, Ms Ibrahim and Ms Wahab attended a Shisha lounge, in Mississauga to have drinks. Ms Ibrahim had driven them to the lounge. They arrived at approximately 11:50 pm.

134Approximately one hour later Ms Wahab began to receive text messages from Mr Hassan Adam which made Ms Wahab upset. Mr Hassan Adam stated that he was involved in an accident and asked her to report that the car had been stolen. He asked her to meet him at 185 Mary Street North, in Hamilton. (hereinafter “Mary Street”)

135The extraction from Ms Wahab’s iPhone detailed the following text messages from Mr Hassan Adam:

“Just report stoli”. “You want to report the car stolen” “right now,”. “Like in a bit. Okay, wait a bit. Check what’s in Brampton news on”. “185 Mary Street North”

136Ms Ibrahim drove Ms Wahab to Mr Hassan to the Mary Street address. They arrived at approximately 2-2:30 a.m. Mr Hassan Adam and an older white male were inside the house.

137According to Ms Ibrahim she sat on a couch and remained in the house for approximately 20 minutes. During that time Mr Hassan Adam made calls and talked on his phone. He spoke Somali, which Ms Ibrahim could understand. He was anxious and frantic. She heard him mention “bullet casings or something like that. (See: Transcript dated August 17, 2021, page 23, lines 25 and 26)

138Ms Ibrahim recalled that Mr Hassan Adam asked them to arrange a rental car for him to leave the country. He mentioned that after the accident he fled but had left clothing in the car. He took his money and grabbed a cab and left the area. He asked Ms Wahab to report her car “stelly” which is street slang for stolen. (See: Transcript dated August 17, page 28, line 15). Mr Hassan Adam asked Ms Ibrahim and Ms Wahab to look on the internet for any news.

139Ms Ibrahim, Ms Wahab and Mr Hassan Adam drove back to Mississauga to the hotel that Ms Wahab had previously booked for that evening.

140Ms Ibrahim used her identification to check in. They went to their room. she heard Mr Hassan Adam on the phone again. She overheard him repeat that he should get out of the country and then “mentioned something about a chain… how there was fight about a chain or something.” (See: Transcript dated August 17, 2021, page 32 line 17, and page 37 lines 25-28).

141They slept in the room for several hours. At approximately 8:00 a.m. they woke up. They searched the internet and discovered a news story about a “17-year-old had died.” Mr Hassan Adam said that he was in Brampton and “said something about how he had a hit and run in Brampton, and he took a taxicab from Brampton to Hamilton.” (See: Transcript dated August 17, 2019, page 32, lines 15-16)

142Approximately twenty minutes after they read several internet reports, Ms Wahab received call from her mother that the police were at their home. A police officer got on the phone and asked her where she was and that the police would be coming to see her at the hotel. Mr Hassan Adam stated, “let’s go.” At that point they checked out of the hotel. They dropped off Mr Hassan Adam at an apartment complex a few minutes away somewhere in Mississauga.

143Mr Hassan Adam tried to assist Ms Wahab in keeping her story straight about the car being stolen when she eventually would have to talk to the police. After she spoke to the police. Ms Wahab met Mr Hassan Adam in Hamilton and told him what she had told the police. The following day both Ms Wahab and Mr Hassan Adam were arrested as they were getting into a cab. Ms Wahab was charged with ‘accessory after the fact of murder.’ Ms Wahab was held for a bail hearing. After she provided a proffered statement she was released on bail.

144Ms Wahab testified that Mr Hassan Adam asked her to lie to the police and to tell them that he was with her all night on New Year’s Eve. Mr Hassan Adam asked Ms Wahab to delete all their text messages, which she did at his request.

145Ms Wahab testified that Mr Hassan Adam said that if the police came to the hotel he was going to leave.

146Ms Wahab testified that Mr Hassan Adam admitted to her that he was involved in a car accident in Brampton and that he left the car.

147She also heard him talk about the chain on the phone and that he was with his “young’uns” when they were at the Mary Street address.

Mr. Hassan Adam’s Clothing:

148When they were at Mary Street, Ms Ibrahim recalled that Mr Hassan Adam wore Gucci shoes, black pants, a black jacket.

The Four Points Hotel in Mississauga:

149Ms Smith, Drouin-Johnson, Ms Kefte, Mr Bunbury and his friend, Ms Blackwood, Ms Soun, and Ms Bond drove to the Four Points Hotel, in Mississauga and paid for a room. Mr Soun testified that they continued to smoke weed and drank in the hotel room. Mr Bunbury and his friend came to their room through the side door of the hotel. Eventually, Ms Smith and Mr Bunbury got their own room.

150Ms Drouin-Johnson and Ms Kefte attended the hotel that morning however remained in the lobby and then left. They took a taxi to the Go Transit Bus terminal located at the Person International Airport. Then they took a Go Transit Bus to Ms Drouin-Johnson’s residence in Hamilton.

151Before they left the hotel lobby, Mr Abdi attended the hotel. Ms Kefte had texted to Mr Abdi their location after the party. Once Mr Abdi arrived, he asked Ms Kefte to rent a room for him since he did not have any identification with him. She refused. Mr Abdi was eventually picked up from the hotel by his friend “Jason.”

152Eventually that morning Mr Abdi showed up at Ms Drouin-Johnson’s home in someone’s vehicle and Ms Kefte left with Mr Abdi.

153The next day Ms Smith dropped off Ms Blackborrow at her house.

The Purchase of a Bottle of Hennessey at an LCBO Earlier in the Day; Tionna Hall Receives a Visit from Mr. Shokri in Hamilton:

154Ms Hall met Mr Shokri during high school in Hamilton. She described their relationship formerly as “friends-with-benefits” near the end of high school. Although they were no longer dating, they did continue to see each other.

155Ms Hall lived in a townhouse with her sister Denisha Taylor and her daughter. Sharaf is her father and occasionally he slept over.

156At approximately 3:00 am, when she returned to her home from a New Year’s Eve party, she found Mr Shokri in her bedroom sitting on the edge of her bed smoking. It was not uncommon for Mr Shokri to “pop by.” Ms Hall’s mother often left door open. However, Ms Hall was surprised to see Mr Shokri since they did not talk prior or earlier that day.

157Both Mr Sharaf and Mr Shokri are Sudanese and were friends. Earlier in the day Mr Sharaf, Mr Abdi and another male, named Bader Eldin attended the LCBO and bought a bottle of Hennessey. Mr Sharaf stayed at Ms Taylor’s residence and got very drunk while Ms Taylor went out to the Modern Night Club.

158Ms Hall recalled that Mr Shokri wore a Nike sweater with hood and Nike Air Forces running shoes. Mr Shokri wore a chain that night. On previous occasions, Ms Hall had seen Mr Shokri wear a long gold chain with an angel pendant. Denisha Taylor testified that she had seen him previously wear a chain.

159Ms Hall testified that they smoked and fell asleep. Mr Shokri got up and left and noon.

The Forensic Evidence:

160The police gathered several items in and around the Pontiac G6 which were submitted for DNA analysis and fingerprint testing. The forensic analysis was contained in several reports that were included in the section 540(7) application.

161The items and the forensic analysis were as follows:

(1) Two 9 mm shell casings were located on the floor behind the front passenger seat. (2) The back-passenger seat window of the Pontiac G6 was open and the front passenger seat window was closed. (3) A brown satchel located in the rear passenger seat contained a DNA profile from which Mr Shokri’s DNA cannot be excluded. (4) A water bottle located in the rear passenger seat footwell contained a DNA profile from which Mr Abdi’s DNA cannot be excluded. (5) A cigarette butt located in the rear passenger seat footwell contained a DNA profile from which Mr Shokri’s and Mr Abdi’s DNA cannot be excluded. (6) A Hennessey bottle located in the front passenger seat footwell contained Mr Abdi’s fingerprint, a DNA profile from which Mr Shokri’s DNA cannot be excluded. (7) A Hennessey box found in the same location contained Mr Shokri’s fingerprint. (8) A plastic bag located in the centre console of the car contained Mr Hassan Adam’s fingerprint. (9) A baseball cap located on the street just outside of the car contained a DNA profile that Mr Hassan Adam cannot be excluded. (10) A red solo cup located in a garbage bag hanging in the kitchen sink area of the residence contained a DNA profile from which Mr Hassan Adam cannot be excluded. (11) A provincial offence notice, an application for a licence and a temporary driver’s licence, a wallet that contained various bank cards, a statement of income was located inside the car were in the name of Zakaria Hassan Adam. (12) The ownership and insurance documents were located inside the car were in the name of Rukhshar Wahab.

162Mr Abdi’s phone records that were filed revealed the following:

(1) There were numerous phone and text messaged throughout December 31st, 2019 and into January 1, 2020 to Mr Hassan Adam’s phone, including: (a) Mr Hassan Adam called Mr Abdi at 12:13 am for 47 seconds. (b) Mr Hassan Adam texted Mr Abdi at 12:37 am. (c) Mr Hassan Adam celled Mr Abdi at 12:39 am for 72 seconds. (d) Mr Abdi called Mr Hassan Adam at 12:44 am for 87 seconds. (e) Mr Hassan Adam called Mr Abdi at 12:49 am for 27 seconds. (f) Mr Hassan Adam called Mr Abdi at 1:08 am for 4 seconds. (g) Mr Hassan Adam called Mr Abdi at 2:34 am for 45 seconds. (h) Mr Abdi called Mr Hassan Adam at 2:44 am for 201 seconds. (i) Mr Hassan Adam called Mr Abdi at 3:21 am for 340 seconds. (j) Mr Abdi called Mr Hassan Adam at 3:39 am for 53 seconds. (2) There were numerous contacts between Mr Abdi and Mr Shokri’s phone number between December 31, 2019, and January 1, 2020.

Analysis:

a) Mohamed Shokri

Identification:

163Mr Ghebrai conceded that his client attended the New Year’s Eve party. However, he argued that the Crown has fallen short in establishing that there was sufficient evidence that was capable of identifying Mr Shokri as the shooter. If, however, I find there was sufficient evidence, than Mr Shokri should be committed to stand trial on second degree murder and discharged on first degree murder.

164I consider the following facts were salient to the issue of identification:

(1) Witnesses and phone records confirmed that Mr Shokri had an association with Mr Hassan Adam and Mr Abdi. (2) Ms Kefte confirmed that Mr Shokri, Mr Hassan Adam, and Mr Abdi were present at the New Year’s Eve party. (3) Mr Shokri had a discussion with Ms Drouin-Johnson regarding a stolen chain. (4) During the discussion with Mr Shokri, Ms Drouin-Johnson felt a hard object that resembled or could have been a handgun concealed in Mr Shokri’s waistband. (5) Ms Drouin Johnson witnessed Mr Shokri and Mr Abdi interacting with someone who resembled Mr Henry. (6) There were witnesses that saw an altercation. (7) There was some resemblance between the person that dragged Mr Shokri out of the party and Mr Henry. (8) The ring camera video confirmed that individuals were looking for a person. (9) Mr Shokri’s DNA was located on a satchel found in the rear seat of the Pontiac G6. (10) Two shell casings were found in the rear of the Pontiac G6 just behind the front passenger seat. It was a reasonable inference that Mr Shokri was in the rear of the car that evening. (11) The rear window was down. (12) Smoke came from that same window as the shots were fired. (13) Mr Hassan Adam was in the driver’s seat.

165In my view, it was a reasonable inference that Mr Shokri was in the rear passenger seat when the shots were fired. There was a motive to fire the shots because of the altercation in the party and not necessarily as a result of a theft of the chain.

166I tend to agree with Mr Ghebrai that it did not make any sense for Mr Shokri to return to murder Mr Henry over the fact that he stole a chain. However, in my view, there was a reasonable inference, as the Crown asserted, that there was a motive since the person that was involved in Mr Shokri’s ejection or removal from the party resembled Mr Henry.

167Despite the lack of voice identification, it was a reasonable inference that Mr Shokri was one of the voices that was heard looking for the person involved in the altercation. There was a temporal and causal connection between Mr Shokri’s conversation with Ms Drouin Johnson, the altercation, the removal from the party, his denied entry back into the party, the entry into the Pontiac G6, the discussion regarding the purpose for ‘spinning the block” and the four shots. In my view, there was a reasonable inference that Mr Shokri was the shooter.

Planned and Deliberate:

168Ms Drouin Johnson told the police about her discussion that she had with Mr Shokri regarding the object in his waist band that looked like a handgun. She witnessed Mr Shokri being dragged out of the party. That individual, she told the police, resembled in both his clothing and height the person she saw lying on the driveway.

169Ms. Drouin Johnson testified that the person on the driveway was involved in an altercation. However, even if that was not the case, there was a reasonable inference that Mr Shokri shot at a class of people that he believed was involved in the altercation. There was a reasonable inference that Shokri may have believed Mr Henry was involved (see pages 22 and 48 of Ms Drouin-Johnson’s statement) The individual that grabbed Mr Shokri, she described as shorter and wore a hood. The post-mortem report noted that Mr Henry was 5’ 7’ and he wore a hood that evening.

170All three defendants associated at the party. Running, the approach to the car, the discussion and getting into the car can be seen and heard on the video. In my view, there was a reasonable inference that the plan was developed. The discussion focused on an individual and not the party or anything else. The plan was to go around the block and return to the house.

171The cumulative effect of the following evidence reasonably inferred that Mr Shokri was in the car:

• The liquor bottle found in the car with his DNA is temporally connect to that day by the purchase of the liquor bottle by Mr Sharaf.
• The shell casings that were behind the front passenger seat
• The satchel with Mr Shokri’s DNA.
• The rear passenger window was down. Mr Brown witnessed the smoke coming from that window. Tristen Wilson supported Mr Brown’s evidence that there was a window open.

172Ms Drouin-Johnson’s evidence that Mr Shokri showed her an object that she believed was a handgun and said “I am not afraid cuz I got it on me”, was evidence capable of supporting the reasonable inference that Mr Shokri would use the weapon or brandish it, if he was challenged.

173There was a reasonable inference from the video that the car, slowed down and stopped near or in front of the house party. In my view, this was an important piece of evidence. Driving by would be sufficient to shoot up the house, however, the stop and then shooting a young man in the head or shooting into a group of persons on the driveway was a targeted shooting and therefore inferred a plan.

174There was evidence capable of supporting a reasonable inference that Mr Shokri had a motive, he had a handgun, he was in the rear seat and there was a shooting. There was clearly some evidence that a jury could find that Mr Shokri was the shooter. Based on the motive and the video evidence that there was a reasonable inference that there was an attempt to find a person. There was an intent to do something to that person. Furthermore, the car stopping followed by four gunshots demonstrated evidence of targeting of a person or a class of persons.

175In my view, a reasonable inference from all of these facts was that Mr Shokri had planned and deliberated to kill a person or a class of persons, that resembled Mr Henry or was involved in the altercation. He will be committed to stand trial on first degree murder.

b) Zakaria Hassan Adam:

176Mr MacGregor conceded that the Crown has led sufficient evidence to justify his client's committal for trial on second degree murder.

177That was a reasonable concession. Mr Hassan Adam was the driver of the Pontiac G6. Mr MacGregor did not concede that the evidence supported a reasonable inference that the shooting was planned and deliberate. However, if there was his client did not have any knowledge of a plan. He submitted that the only reasonable inference was there was no plan and no deliberation, as there simply was not enough time to hatch a plan. But a plan does not have to be sophisticated, well thought out or intricate. (See: Widdifield, at p.153)

178There still needs to be sufficient evidence to demonstrate Mr Hassan Adam possessed the requisite knowledge that there was a plan and deliberate murder in order to sustain the mens rea. However, willful blindness can make out the requisite knowledge of the party regarding the plan. (See: Briscoe, para. 25)

179As I have said, I must consider all of the evidence as it affected Mr Hassan Adam. I have set out that evidence in detail. Its most salient parts (recognizing that in setting out this evidence, I am not indicating that I accept it as accurate or truthful, only that it could be accepted by a reasonable jury) were as follows:

180Mr Shokri was with his friend, Mr Hassan Adam at the party.

181Mr Shokri had an object on him that he figuratively displayed as a handgun to Ms Drouin-Johnson.

182Since there had been an altercation, there was a plan to shoot Mr Henry or shoot at a group of people.

183Kiara Springer and Ms Drouin-Johnson testified that Mr Shokri spoke to them about a chain.

184The defendants shared alcohol and cigarettes. Since they were close friends that occupied the same car, there was a reasonable inference that Mr Hassan Adam would know that Mr Shokri had a handgun. Moreover, it was possible that if Mr Shokri was inclined to boast to Ms Drouin-Johnson, who seemed nothing more than a casual friend, that he had weapon, it can also be reasonably inferred that he would also disclose that fact to his close friend, Mr Hassan Adam.

185Since he was present at the party, combined with the comments that can be heard on the video when the three males went to the Pontiac G6, there was a reasonable inference that Mr Hassan Adam was aware of the altercation.

186There was a reasonable inference that the plan was to murder the person(s) that kicked Mr Shokri out of the party, or a plan to kill a person(s) within the class of persons outside of the residence that he believed was involved in the altercation.

187There was evidence capable of supporting that Mr Hassan Adam knew of the plan. Mr Hassan Adam aided Mr Shokri by driving him back to the location of the shooting, he slowed down before the shooting and after the shooting he attempted to drive Mr Shokri away, as the car can be heard accelerating. It was a reasonable inference that Mr Hassan Adam would know that Mr Shokri was seated in the rear passenger side of the car with the window down.

188There was evidence that Mr Hassan Adam knew about the ‘chain altercation’ from the evidence of Ms Ibrahim and Ms Wahab and therefore knowledge can be inferred.

189I cannot say I entirely agree that Mr Hassan Adam’s communication with Ms Wahab after the murder was indicative or can reasonably infer, knowledge of a planned and deliberate murder. Mr Hassan Adam texted his girlfriend to report the car stolen. He was overheard talking about the bullet casings and getting out of the country. He searched how to travel without a visa. He asked Ms Wahab to rent him a car to leave the country. Many of these actions were equally consistent with an individual involved in a murder, but not necessarily a planned and deliberate one. I agree that if all these actions and communications occurred before the murder the evidence would overwhelmingly support planning and deliberation.

190Both women testified that Mr Hassan Adam asked them to drop him off at a random place when he found out that the police wanted to talk to Ms Wahab. All of this can point away from Mr Hassan Adam not being aware of a plan and equally consistent with Mr Hassan Adam reacting to a murder that he was involved in but was not necessarily planned and deliberate. However, at the preliminary hearing the inferences that are drawn must favour the Crown.

191The text messages and conversation at 12:58 a.m. within an hour of the murder and onward in exhibit 8, indicated that he wanted his girlfriend to report the car stolen. The Crown argued that there was an inference available that part of the plan was for Mr Hassan Adam to purposely crash the car and then removed his clothes and his wallet, report the car stolen and therefore, distance himself from the car. In my view, it was not a reasonable inference that Mr Hassan Adam was going to ditch the car as part of the plan. If that was part of the plan, why did he leave behind so much incriminating evidence. In my view, the evidence was not capable of supporting that inference.

192However, it was a reasonable inference that the three men approached to the Pontiac G6e and entered it given the concessions and the forensic evidence.

193The fact that the car slowed down, while the rear window was down, led to a reasonable inference that Mr Hassan Adam knew what Mr Shokri was going to do, which was either shoot at Mr Henry or at a class of persons that were outside of the house that may have been involved in his ejection from the party.

194It was a reasonable inference that they were displeased about getting kicked out, or the altercation over the chain or both. Their plan was to shoot up the party.

195Mr Brown, the father that hosted the party and who conducted security checks, turned away a group of older men since they refused to be searched. He described the group in their 20’s. The males came from a white car and one of the males wore a Gucci belt. At 23:02:30 on the video, someone who sounded like Mr Brown, can be heard to say, “no side bags or no back packs”. There was some evidence to suggest that Mr Abdi returned to the car. Someone else was heard to say, “they are patting me down….and I walked and was told not with that”. In my view, this was further evidence that could infer that Mr Hassan Adam knew that Mr Shokri was armed.

196I would characterize the tone of the voices on the video was threatening and angry. The declaration “he went this way he was on foot” showed a demonstrated intention to find him. They returned to complete the plan and not go back into the party.

197When taken all together, in my view, there was a reasonable inference that Mr Hassan Adam had knowledge of a plan and deliberate murder. He had the knowledge, or he was willfully blind to the plan.

198In R v Murray, 2020 ONSC 1420 Justice Malloy spoke about the combine reasoning of transferred intent in murder trials referring to the Court of Appeal decisions. Her Honour went on to state at para. 62,

In my opinion, it follows from the combined reasoning in Droste, Ching, and Kluke, that where there is planning and deliberation to kill a member of a particular class of persons, and in the course of executing that plan, the murderers mistakenly kill a person who was not a member of that class, but whom they believed to be a member, the murder is first degree murder.

199Therefore, there was sufficient circumstantial evidence that a reasonable jury properly instructed could find that Mr Shokri planned and deliberated the murder of Mr Henry or a class of persons that may have been involved in the altercation and the subsequent removal of Mr Shokri from the party. That same jury properly instructed could find that Mr Hassan Adam had knowledge of the plan or was willfully blind and aided Mr Shokri in furtherance of the plan by driving him back to the house party, slowing down his car and attempting to drive him away after the murder.

Conclusion:

200The result is that both Mr Shokri and Mr Hassan Adam are committed to stand trial on the charge of first-degree murder of Mr. Henry. Mr. Abdi is committed to stand charge on second degree murder.