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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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: September 30, 2015

Court File No.: Toronto 4817 998 14-75003774-01; 02

Between:

Her Majesty the Queen

— AND —

Alton Grant and Shaqwan Kawano

Before: Justice Richard Blouin

Heard on: February 23, 24, 25, 26, 27, and March 2, 3, 4, 5, 6, and May 4, 6, 7, 8, and June 1, and August 11, 17, 18, 26, 2015

Reasons for Judgment released on: September 30, 2015

Counsel:

• Mr. Derek Ishak and Ms. Jennifer Armstrong — counsel for the Crown
• Ms. D. Sid Freeman — counsel for the defendant Alton Grant
• Mr. Gary Grill and Ms. Elizabeth Bingham — counsel for the defendant Shaqwan Kawano

BLOUIN J.:

Introduction

[1] Rala Fredrick was killed, execution style, on George Street just south of Seaton House just before 2 a.m. on July 6, 2014. He was in the company of three to four other men when a man walked up, and without discussion or argument, shot him and ran away.

[2] The Crown witnesses present at the scene of the shooting were all persons who live, or had lived, at Seaton House (a men's shelter) and spent time on George Street in order to socialize with others and smoke crack cocaine (or consume other narcotics). At least to some degree, each witness in the general area of the shooting was high on drugs and or alcohol. No witness saw a gun. No witness can identify any individual as the shooter. Neither defendant was identified as either the shooter, or a party. There is no forensic evidence linking either defendant to the shooting. No gun was ever found. The Crown's case is purely circumstantial.

[3] In a nut shell, the case reduces to the observations of crack users, combined with CCTV surveillance video evidence which purports to capture the appearance and movements of both defendants, both before and after the shooting. The Crown sought to establish that the shooter, and his accomplice, "cased" George Street before the shooting, located the defendant and shot him, then ran in a south westerly direction to a gate at the east end of a laneway, which led towards Jarvis Street. The surveillance captures moments before and after the shooting, but not the shooting itself. All of the men around the shooting establish that it took place just south of Seaton House, on the east sidewalk of George Street. The Crown produced four witnesses with relevant evidence around the time of the shooting.

THE LAW

Circumstantial Evidence

[4] The law regarding my task in a preliminary hearing where the case against both defendants relies on the application of circumstantial evidence is well described in a recent judgment in the Ontario Court of Appeal in R. v. Turner, 2012 ONCA 570. Justice Armstrong writes:

[15] The seminal case on the test to be applied by a preliminary hearing judge is United States of America v. Sheppard, [1977] 2 S.C.R. 1067 at p. 1080:

I agree that the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[16] McLachlin J. (as she then was) in R. v. Charemski, [1998] 1 S.C.R. 679, made it clear that the sufficiency of evidence cannot be assessed without reference to the ultimate burden on the Crown to prove the case beyond a reasonable doubt. Charemski concerned the sufficiency of the evidence for a directed verdict. McLachlin J. said at p. 701:

... "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.

[17] In this case, where there is no direct evidence to establish possession, the preliminary hearing judge must engage in a limited weighing of the circumstantial evidence. This point was emphasized by McLachlin J. in Charemski at p. 699. Again, in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, McLachlin C.J. said at para. 23:

The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt's Manual of Criminal Evidence, supra, at s. 9.01 (circumstantial evidence is "any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trial of fact may infer the existence of a fact in issue"); McCormick on Evidence, supra, at pp. 641-42 ("[c]ircumstantial evidence ... may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion"). The judge must therefore weigh the evidence in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Emphasis in original.]

[5] Further, on the issue of limited weighing of evidence in a circumstantial case on a preliminary hearing, R. v. Munoz, [2006] O.J. No. 446, is instructive. Justice Ducharme writes at paragraphs 21 and 22:

[21] Where the Crown seeks a committal on the basis of circumstantial evidence, the task of the preliminary inquiry judge becomes somewhat more complex. This was also explained in Arcuri, supra, per McLachlin C.J.C. at pp. 840 S.C.R., pp. 31-32 C.C.C.:

The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed. ... The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

(Emphasis added)

This limited weighing means that inferences to be drawn from circumstantial evidence need not be "compelling" or even "easily drawn" in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve. A preliminary inquiry judge commits jurisdictional error where he weighs competing inferences or chooses among them. If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination. As Major J. put it in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, [2004] S.C.J. No. 74, at para. 18, "where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to [page144] be considered". Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it.

[22] However, despite the very circumscribed scope of the preliminary inquiry judge's function with respect to the drawing of inferences, the weighing of the evidence involved, while limited, is of great importance. Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence -- the accused must be discharged as there would be an absence of evidence on an essential element.

Eyewitness Evidence Around Time of Shooting

David Kamkin

[6] Mr. Kamkin was standing on the east side of George Street just south of Seaton House with the victim, Trevor Clarke (Boxer), and Robert Robinson (Stutter). There was a young man he did not know across the street. Mr. Kamkin thought this to be unusual since he was not talking to anyone and appeared to be angry because of the way he was striding. What initially caught his attention was the manner of dress given that this was a warm summer evening.

[7] Mr. Kamkin could not see this person's face because of a hood that had been drawn around his face. He described him as follows:

• young, slim, tall, in his mid- to late twenties;
• a person of colour (later referred to as "dark complexion");
• wearing a long sleeve "tank top", fleecy, dark charcoal grey track suit.

[8] Mr. Fredrick was standing to Kamkin's immediate left when the young man walked diagonally across George Street and turned straight toward the victim. At that point, Kamkin heard a loud bang, smelled gun powder, and saw lots of smoke right in front of the victim. Kamkin did not see a gun, but concluded there must have been one given the person had his hands in the pockets of his top, and saw a blue light come from that top at the time he heard the bang.

[9] The "gunman" turned back, jogging diagonally across George Street to the west side, towards large metal gates (to the alleyway north of 300 George Street). There was another young man, who Kamkin estimated was five or six feet away from the victim, who jogged behind the gunman towards the gates. Kamkin referred to this second person as the "point man", although he did not see him pointing anyone out. A third person, who was crouched behind the gate, opened it to allow the gunman and the point man to enter a laneway which led to Jarvis Street. All three went west towards Jarvis Street.

[10] Kamkin described the "point man" as:

• a person of colour;
• wearing a lighter grey track suit;
• no hoodie but a hat like a baseball cap or something;
• a young man with a similar build to the gunman;
• short hair.

Trevor Clarke

[11] Trevor Clarke heard a bang that he thought was a firecracker. He saw smoke in the area to his right where the sound came from. He heard the victim say something like he had been shot. After Clarke realized what had happened, he saw the back side of a person running south past him. Clarke then got on his bicycle and tried to chase him. That person climbed over a gate which leads to the alleyway north of 300 George Street which in turn leads to Jarvis Street. He never saw that person he was chasing holding a gun, but he believed that person running was the shooter. He did not see a second person running.

[12] Mr. Clarke described the person:

• he did not know if the person was male or female but assumed it was a male because of the way the person moved;
• he is taller than the witness (who is 5'5");
• he was big but not fat;
• he wore dark clothing;
• he had his face covered but doesn't know with what;
• he did not see the person's skin colour.

Michael McDermott

[13] After McDermott heard a bang, and Rala dropped to the ground, he believes he saw two men running across George Street, from east to west, toward, and on the other side of, a gate. He saw Boxer (Trevor Clarke) running behind them in the same direction. Other than describing the man as taller than him, slim, and wearing dark clothes, he could not provide much in the way of identification. Although he first said he did not see faces, he later said the men were black men.

Robert Robinson

[14] Mr. Robinson had just asked the victim for a cigarette when he heard a "pop", and when he turned around there was a man running off. After feeling numbness in his hand, Robinson saw there was a hole in his wrist with blood gushing out. He then became aware that he had been shot by the same bullet. He had seen Rala drop, but thought he was having a seizure. He left the immediate scene to go to an alleyway to smoke crack.

[15] Robinson described the person running away as:

• tall (6'2" or 6'3");
• white or mulatto male but scarf covered up to nose;
• wearing a Middle Eastern scarf with tassels that covered most of his face;
• the same person he saw fast walking north on George Street around 10 minutes earlier;
• possibly wearing glasses;
• travelling south west, diagonally across George Street but didn't see where he ended up.

[16] Robinson was shown an excerpt from Exhibit 9 (the video surveillance) of a person the Crown alleges is Mr. Kawano walking on George Street minutes before the murder. Interestingly, he cannot say if that person was the "shooter".

Timing of the Shooting

[17] As indicated above, the CCTV evidence provides times that catalogue the movements of the defendants before and after 1:50 a.m. on July 6. The timing of those movements, and, as a result, the inferences the Crown wishes an eventual trier of fact to make, depends heavily upon the shooting having occurred at 1:50 a.m. A reasonable jury could conclude, based upon the evidence of Samira Hosseini, a Toronto Community Housing security guard, that the shooting did in fact occur at the time she said it did. She was in her office, within metres of the shooting scene, and heard a gunshot at 1:50 a.m. She and others called 911. To roughly corroborate that, PC Joshua Barry testified that the radio call reporting this shooting was received at 1:51 a.m.

Surveillance Camera Evidence (CCTV)

[18] The prosecution produced a number of video and still images which captured the physical appearance of both defendants, including the clothing they were wearing, both before and after the shooting. Those images extend from the afternoon of July 5, through the evening of July 5, and early morning hours of July 6 before the shooting, and throughout the rest of the day of July 6.

[19] Both defendants are captured on an elevator surveillance video at approximately 2:04 a.m., entering 150 Elizabeth Street in Toronto. In my view, a jury would have no difficulty in finding, given that the images are clear and in colour, that it was Mr. Kawano and Mr. Grant who arrived at that apartment building approximately 14 minutes after the shooting. Clothing worn by both plays prominently in establishing the identity of both men at other relevant times.

[20] I also find that a reasonable jury could conclude that the video evidence tracking what the Crown contends to be the movements of the defendants in the 16 minutes before the shooting, and the few seconds after the shooting, to be the movements of the defendants.

[21] Although some images are less clear than others, a jury could conclude that:

• At 1:34 a.m. Grant is running through the laneway just north of 300 George Street towards Jarvis Street.
• At 1:35 a.m. Grant and Kawano walk east bound through that same laneway towards George Street (Kawano has a head scarf).
• At 1:36 a.m. Kawano walks north bound on George Street towards Seaton House and turns around.
• Between 1:37 and 1:38 a.m. Grant walks north bound on George Street and looks in the direction of the deceased. After turning south bound the deceased walks with or near Grant.
• Between 1:46 and 1:48 a.m. Kawano walks north on George Street, looks around the entrance to Seaton House, continues north bound, and then turns around south bound to walk towards the shooting scene. Kawano has his identity obscured by a head scarf.
• 1:50:21 Kawano and Grant run west bound through laneway north of 300 George Street.

[22] Although the images captured in the laneway seconds after the shooting are the least clear, the general appearance of Mr. Grant, and the shoes and head scarf consistent with Mr. Kawano's appearance, allows for the possibility that a jury could find that the men running away from the shooting were Kawano and Grant.

Evidence of Planning and Deliberation

[23] None of the witnesses in this case testified to any argument or discussion taking place just prior to the murder. It would be open for the jury to find that the manner of the shooting above means that it must have been planned. The actions of the shooter in approaching the deceased and summarily shooting him must have entailed some deliberation regarding a plan especially in the context of the video evidence showing both defendants' movements from 1:34 a.m. until 1:50:21 a.m., and the cell phone contact between the two defendants.

[24] In addition to that, the evidence of Sherice Brown-Love regarding an argument between Mr. Kawano and his girlfriend (known as J-Way) during the afternoon of July 5 is probative of the issue of motive. After the argument, Mr. Kawano stormed off. Monique Cargioli was also present on George Street that afternoon. She observed that the deceased had "inappropriately" hugged J-Way while "squeezing her butt". Ms. Cargioli testified that shortly after the hug, Mr. Kawano was very upset about the hug. Ms. Cargioli told the deceased to apologize. He did apologize to Mr. Kawano.

[25] Although, in my view, this dispute would provide scant motive to kill someone, the jury could conclude this was the reason the defendant returned to George Street with his facial identity obscured, to shoot the deceased, and that he planned and deliberated the shooting in the intervening, roughly twelve hours.

CONCLUSION

[26] Although the eyewitness evidence of the shooting contains varying observations and descriptions of the alleged assailant by witnesses who were in various states of sobriety, the jury could conclude that it was Mr. Kawano wearing a head scarf walking towards the murder scene seconds before the murder. They could also conclude that the person who shot the deceased was a young man wearing a head scarf or head covering. The jury could also conclude that the shooter ran in a south-westerly direction through the alleyway north of 300 George Street. Accordingly, it would be open to that jury to find that the only rational conclusion on the evidence to be that Kawano was the shooter.

[27] The jury could also conclude on the evidence of some eyewitnesses, along with the CCTV evidence that there was a second person running with the shooter, and that second person was a party to the shooting. The jury could find that second person to be Mr. Grant. The CCTV evidence, and the cell phone records, display significant contact between both defendants in the fifteen minutes before the shooting. The jury could conclude that Mr. Grant jogged out to Jarvis Street to connect with Mr. Kawano and bring him to George Street. The jury could conclude that Grant was conducting observations of the deceased in order to assist Mr. Kawano. And the jury could conclude that Mr. Grant ran from the scene with Kawano, and a short time later provided refuge at a friend's apartment to assist his friend in successfully carrying out his plan to kill Mr. Fredrick.

[28] And, as indicated above in paragraphs 22 to 24, there is an inference available that a plan existed and was deliberated upon, and that Mr. Grant, by his actions captured on video immediately before and after the shooting, was aware of the plan and assisted in its execution.

[29] Accordingly, both defendants must be committed to trial on First Degree Murder charges. I cannot leave this case without observing that in my view the case against both (but especially Grant) is exceedingly weak, especially regarding the reliability of the eyewitnesses and inconsistencies in their respective descriptions. Only painstaking police work that catalogued the video surveillance allows me to find as I do. Although guilt is one inference to be drawn from the evidence and a reasonable jury could conclude that to be the only rational inference, I would not come to that same conclusion. It is not the only rational inference. Obviously, I appreciate my role at a preliminary hearing to be much different, but if this had been a trial I would have entered a finding of not guilty for both defendants. If I had jurisdiction to grant bail (which I do not), I would likely do so based upon s. 515(10)(c)(i) – the strength (or lack thereof) of the prosecution's case.

Released: September 30, 2015

Signed: "Justice Blouin"