Court File and Parties
Court File No.: CR-15-70000142-0000 Date: 2017-03-06 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Sanjay Francis
Counsel: E. Pancer, for the Crown K. Bailey, for Mr. Francis
Heard: February 27, 28 & March 1, 2017
S.A.Q. Akhtar J.
Introduction
[1] Sanjay Francis has pleaded not guilty to three counts of attempted murder and a single count of attempting to possess a prohibited firearm contrary to the Criminal Code.
[2] Much of the evidence in this trial is undisputed and was presented by way of an Agreed Statement of Facts. The dispute between the parties is not factual but centres on the legal interpretation of attempt and its application to this case.
[3] The Crown argues that the accused’s conduct falls within the legal definition of attempted murder and attempted possession of a firearm as he has taken all the requisite steps to commit the offences. The defence, on the other hand, submit that the accused’s conduct falls short of the required actus reus of either offence and, accordingly, the charges should be dismissed.
Factual Background
[4] The accused and the complainant, hereinafter referred to as C, were romantically involved from August 2010 to early September 2010. On 6 September 2010, C ended the relationship following the accused’s assaultive behaviour. After making several unsuccessful attempts to reconcile, the accused began to threaten C prompting her to call the police and report his threatening behaviour along with the prior assault. As a result, the accused was arrested on 16 September 2010 and charged accordingly.
[5] On 4 November 2010, the accused pleaded guilty to mischief, assault with a weapon, uttering death threats, and criminal harassment. He was sentenced to six months’ imprisonment concurrent on all counts with 50 days pre-trial credit on a one-for-one basis. In addition, the court imposed a probationary period of three years with the condition that the accused abstain from contacting C or any members of her family (including her ex-husband); and not to be within 100 m of anywhere C or any members of her immediate family or ex-husband lived, worked or might reasonably expected to be present. The court also imposed a firearms prohibition for a period of 10 years.
[6] The accused’s interactions with the law did not end there. Subsequently, C contacted the police complaining that the accused was attempting to contact her and making threats. C co-operated with the police to send the accused a message via Facebook so that he could be lured to a meeting. On 11 June 2011, the accused was arrested and charged in relation to these allegations. On 3 May 2012, as a consequence, the accused pleaded guilty to failing to comply with probation and criminal harassment. Having served 341 days of pre-trial custody he was sentenced to an additional one day for each count and given a further period of probation of 18 months with the terms matching the original probation. A second firearms prohibition lasting 10 years was also ordered.
[7] By this time, C had also testified against the accused, in April 2012, in an unrelated aggravated assault trial in which he was acquitted.
[8] After being released from custody, police received information that the accused was trying to locate C and that he intended to kill both her and her three young children. As a result, C and her family were placed into the Witness Protection Program (WPP).
[9] Prior to entering the WPP, C informed the police, on 22 May 2012, that after the accused’s 2011 arrest, she had amended her Facebook account, changing her name and removing her photograph. C had done this in the hope that the accused would be unable to find her when released from custody. However, C advised officers that since 3 May 2012 – the date of the accused’s release - she had received three requests from a Facebook account with the same name as the new account she had set up. The first request arrived on 13 May 2012 with two further requests on May 18 2012. The requests were sent to an account titled FEMAC which had been set up by C for the sole purpose of telling the accused to leave her alone. She had not made contact with any other person through this account and believed the accused to be the person who had sent the friend request. Moreover, the accused had also sent requests to three of C's friends and relatives using the same account. The recipients had originally believed that the request originated from C but were later told that this was not the case as C was in protective custody.
[10] As a result of this information, the police commenced an undercover operation to investigate the accused.
[11] On 2 July 2012, the accused signed into the fictitious account and posted the following message:
“There are worse things out there than death and you are going to pay for the lies that you told"
[12] On 3 July 2012, a second message was posted in the "about" section of the Facebook account. It read:
"When I find you, I'm going to kill your kids in front of you and you will live with the fact that they are dead, because of the lies that you told."
The Undercover Operation
[13] The police strategy was to befriend the accused during scheduled visits to his probation officer. On 30 May 2012, Detective Constable Dharmendra Grewal, met the accused at the probation office situated at 920 Yonge Street in Toronto. Posing as an offender who had to attend his own probation meeting, and introducing himself as a fitness trainer, Grewal engaged the accused in conversation about gyms and steroids.
[14] Taken in by this façade, the accused informed Grewal of the domestic assault charge and the difficulties he had experienced with C including the time that he had spent in custody. The accused told Grewal that C had ended up “fucking him over”. The accused continued to refer to C who he felt had “fucked him”. He told Grewal that he was going to be “taking care of business” and, after doing so, would leave Canada to “go to a higher place”. The accused also enquired about the possibility of obtaining a firearm and specifically mentioned two types of gun: a Cougar and a Taurus.
[15] Grewal met the accused again the next day at a gym where the accused asked whether Grewal knew anyone interested in buying a passport for the sum of $5000 and whether he could obtain a gun. Grewal responded that he would make enquiries.
[16] The two men met again on 6 June 2012. This time, however, Grewal was wearing recording equipment after a judicial authorisation had been obtained. Once again, the accused spoke of his wish to obtain firearms and, at one point pulled out a list of guns which included a Taurus and a Glock. The accused also provided further details of his relationship with C telling Grewal that they had dated for approximately two months and that she had three children. He added that “she’ll be dealt with” because he “always finds everybody”. The accused told Grewal that he had other people looking for her.
[17] On 13 June 2012, Grewal met the accused again. The subject of the accused’s passport and guns resurfaced after Grewal asked the accused if he had looked into the question of getting a “burner”. Grewal informed the accused that he had a friend who worked in Windsor and was always getting things “going over the border”. The accused informed Grewal that he wanted $5000 for his passport which he would not report stolen. These funds would allow the accused to pay $1500 for the gun and keep the remainder. When asked, by Grewal, how soon he needed the gun, the accused said “I don’t need it soon. Like I got other things to take care of. For, that’s why this, you know, just see what’s out there at the end of the day you know.” Later in the conversation, Grewal again raised the subject of guns by telling the accused that he could call his friend in Windsor to get “some prices or some shit like that”. The accused replied “Yeah, just see what’s out there at the end of the day” and listed the guns that he wanted: a Taurus M Series and the Glock G1, G19 and G22.
[18] On 14 June 2012, Grewal phoned the accused to tell him that he had spoken to his friend in Windsor and was told that he could obtain the guns. On 20 June 2012, Grewal sent a text message to the accused asking if he still “wanted to do the trade”. The accused replied the next day saying that he had just got back from Barrie and that he was “no longer doing it anymore.” Grewal took this conversation to mean that the accused might be seeking to obtain the gun from another source.
[19] Grewal testified that he had trouble getting hold of the accused after 13 June. However, on 11 July, he and another undercover officer, Sergeant Vijay Shetty met with the accused at his probation office, before going to the Works, a nearby restaurant. Once again, Grewal wore equipment to record their conversation. The accused made clear that he was determined to track C down through her children. Grewal told him that he had a friend working in the Information Technology department at the school board who might be able to discover the children’s whereabouts and the accused expressed his willingness to pay for that information. Grewal brought up the earlier text message in which the accused indicated that he had no need of the gun any more. The accused replied that “I know I can get it when I really need it. But I was just trying to like set everything up.”
[20] Grewal pretended to phone his friend to locate C’s children’s whereabouts. During this exchange, the accused provided details of C’s previous marriage, and her children’s names. After ending this fictitious conversation, Grewal told the accused that his friend might not get the information until the next day. The accused replied that the “friend” would be in a better position if he, the accused provided further details which would be forthcoming. The accused expressed animus towards C, insisting that she had set him up to get arrested for communicating with her on Facebook. The accused exclaimed that “you can’t try to set somebody up - and get away with it.”
[21] Later on in the conversation, the accused expressly told Grewal that he was going to kill C’s children and take his own life. When asked to confirm his intention, the accused remarked “[a]nd that’s how she’s gonna suffer for the rest. I’m not gonna kill her. I’m gonna do something to her. She’s gonna suffer for the rest of her life and she’s gonna wish she was dead. I thought it would be more painful than death.” When asked again whether there is “no other way you can make her suffer without taking out her kids though?”, the accused responded: “Nah it’s the best way. That’s the best way, ah, mean the most painful way. She’s gonna wish she was dead once I’m done with her ‘cause she’s gonna suffer for the rest of her life with that pain, ah, you know. That’s what she, she’s gonna have to suffer with and, that, that’s even worse than death.” Finally, towards the end of the conversation, the accused confirmed that C had three children and when Grewal asked “you’re only taking out two?”, the accused responded by saying “Oh no, taking out all of them.” He then added that this included the youngest child aged one and a half years.
[22] At the end of the conversation, Grewal suggested that the accused send him a text “with those names and shit” and the accused said that he would and that he had to take care of “some things”. He added that “I’ll work on work on everything and this - get the plans going and this you know take our time at the same time get it done our way that works at best for us”. He concluded by saying “we’ll move forward and stuff, you know”.
The Search of the Accused’s Residence
[23] On 11 July 2012, the accused was arrested and a search warrant was executed at his home address of 27 Gamble Avenue in Toronto. The police seized a number of items including a computer, iPhone and various documents including a letter written to an unknown person requesting a search for C and identifying different government agencies that, when searched, might yield her address.
[24] The police found other documents displaying C’s home address and number; C’s sister’s home address and number; the names and dates of birth of all three of C’s children; and a piece of paper containing the make and model of a Taurus and a Glock firearm.
[25] Finally, a search of the accused’s computer also revealed Internet searches for C, her children and firearms.
IS THE ACCUSED GUILTY OF ATTEMPTED MURDER?
Section 24(1) of the Criminal Code
[26] The law of attempt is statutorily defined in section 24(1) of the Criminal Code which reads as follows:
24 (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law
[27] In addition, section 239 of the Code prescribes the punishment for the offence of attempted murder.
Did the Accused Have the Required Mens Rea?
[28] The mens rea of attempted murder derives from the leading case of R. v. Ancio, [1984] 1 S.C.R. 225, where McIntyre J. described the required mental element in the following passages:
The completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include an intention to kill. I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213 of the Code. I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill.
The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent. If there is any illogic in this matter, it is in the statutory characterization of unintentional killing as murder. The mens rea for attempted murder is, in my view, the specific intent to kill. A mental state falling short of that level may well lead to conviction for other offences, for example, one or other of the various aggravated assaults, but not a conviction for an attempt at murder.
[29] In this case, Ms. Bailey, for the defence, concedes that the mens rea of the offence has been made out. A review of the evidence confirms this to be a sensible and correct concession.
[30] The accused’s animus towards C appears throughout his intercepted communications with Grewal. The genesis of his hostility towards C is rooted in their failed relationship, her testimony as a Crown witness in his trial for aggravated assault, and the accused’s belief that C lured him into a police trap which led him to spend almost a year in custody.
[31] From the outset, the accused spoke of desire for revenge against the woman who had conspired in “fucking him over”. His stated intent to “take care of business” and then go to a “higher place” centred around his scheme to punish his former girlfriend. The most chilling part of the accused’s plan was revealed in the conversation recorded on 11 July 2012 when he announced his intention to make C “suffer for the rest of her life” by killing all three of her children. In the accused’s mind, for C, that was a fate worse than death.
[32] For these reasons, I find that the accused possessed the required mens rea for attempted murder.
Did the Accused Commit the Required Actus Reus?
[33] The actus reus of attempt is more difficult to identify in this case.
[34] In United States v. Dynar, [1997] 2 S.C.R. 462, at para. 50, the Supreme Court of Canada defined attempt as “an intent to commit the completed offence together with some act more than merely preparatory taken in furtherance of the attempt.”
[35] What is the distinction between mere preparation and the actual attempted commission of the crime? In R. v. Cline (1956), 115 C.C.C. 18 (Ont. C.A.), Laidlaw J.A. made the following observation:
The consummation of a crime usually comprises a series of acts which have their genesis in an idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next step in the series of acts done by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime. The connection is in fact proximate.
[36] Laidlaw J.A. added:
The actus reus must be more than mere preparation to commit a crime […] but when the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal attempt to commit that crime.
[37] These comments were considered and approved of by the Supreme Court of Canada in R. v. Deutsch (1986), 27 C.C.C. (3d) 385 (S.C.C.), where Le Dain J., at para. 29, emphasised the necessity of applying the principles on a case by case basis stating that “no satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt, and that the application of this distinction to the facts of a particular case must be left to common sense judgment”.
[38] The facts in this case disclose a series of actions committed by the accused in his avowed plan to kill C’s children. Those actions range from seeking Grewal’s assistance to obtaining a gun, to searching for his intended targets on the Internet. It is clear that the accused was taking some steps to further his scheme. The question is: were these steps mere preparation or had the accused taken the “next step” tipping his acts over the attempt threshold?
[39] Ms. Pancer submits that the “next step” in this case came when the accused asked Grewal to have his fictitious friend search the school board’s database to locate C’s children. At that point, says Ms. Pancer, the accused had completed his preparations and moved into the next phase. Ms. Bailey, on the other hand, says that throughout this narrative the accused was still in the early stages of preparation: he did not know where the children were; he had no firearm; and he was without the financial capability to obtain a gun which was an essential element in completing his mission.
[40] The evidence certainly demonstrates the accused had the specific intention of killing C’s children. His animus towards C, the object of his obsession, and his stated method of revenge is apparent throughout his conversations with Grewal. However, it is equally clear that he was in no position to carry out his objective. This is not a case like R. v. Boudreau, 2005 NSCA 10, where the perpetrator confronted his estranged wife with a rifle, pursued her to a neighbour’s house, and tried to kick in the door. Nor does the accused in this case go as far the offender in R. v. Goldberg, 2014 BCCA 313, who made “intensive” efforts to locate the victim, took a loaded handgun to the area in which she lived and, upon finding his target and her husband, pointed the gun at them threatening to shoot them. In those cases, there can be no argument that the acts had progressed beyond the preparatory stage.
[41] The case at bar is very different. The accused had no knowledge of where C or her children were and he admitted that he did not have a gun although he claimed that he could get one when needed. His plan to pay for the gun - by selling his passport - appeared to have stalled because he needed to send the passport to his brother so that it could be altered to allow his brother to unlawfully enter the country. An objective review of the overall evidence demonstrates that the accused’s plan to kill C’s children was still in the preparatory stages.
[42] During the very disturbing conversation about the murder of C’s children on 11 July 2012, the accused made it clear to Grewal that he had other “things” to take care of. At the conclusion of this conversation, the accused advised the undercover officers that he was “going to work on everything - get the plans going and you know take our time”. The accused was, in effect, telling Grewal and Shetty to hold off until his other plans had been completed.
[43] In pressing her argument, Ms. Pancer points to R. v. Burdan, as an example of acts that appear to be preparation actually constituting an attempt. There, the accused was charged with production of MDMA contrary to s. 7(2) of the Controlled Drugs and Substances Act. When police searched his premises, they found the necessary equipment and some, but not all, of the chemicals required to make the drug. The trial judge found that the accused had taken sufficient steps beyond mere preparation.
[44] In my view, Burdan is easily distinguishable from this case. There the accused was charged with the production of MDMA. The judge found that the accused had not only set up the equipment required to make the drug but had begun the process of production by synthesising one of the components. The missing chemicals that were required to complete production were easily obtainable and, in any event, much could be done without those chemicals. This is a far cry from the case at bar where the accused had not yet obtained the necessary firearm or discovered the whereabouts of his intended targets.
[45] I conclude that the accused was still making preparations to carry out his purpose and his request that Grewal use a friend to locate the whereabouts of C’s children was part of those preparations. For these reasons, I find that although the accused had the requisite mens rea for the offence of attempted murder, the Crown has failed to establish the actus reus of the offence. Accordingly, I find the accused not guilty of the counts of attempted murder.
IS THE ACCUSED GUILTY OF ATTEMPTING TO POSSESS THE FIREARM?
[46] From the outset of his interactions with Grewal, the accused made enquiries about the acquisition of a firearm. On 30 May 2012, the accused indicated that he was looking for a “burner” specifically naming a Cougar or Taurus as his preferred options. On 31 May 2012, the accused asked Grewal whether he could obtain a gun as well as find a prospective buyer for his passport.
[47] On 6 June, the accused again raised the subject of firearms showing Grewal a list of the makes and models of firearms which included a Taurus and a Glock.
[48] On 13 June, the accused agreed to have Grewal make contact with his friend in Windsor to check on the availability of a gun but made clear that he did not need the gun “soon” as he had other things to take care of. It was in this conversation that the accused revealed that he would use part of the proceeds of selling his passport to pay for the gun.
[49] On 14 June, the accused was told by Grewal that his “friend” in Windsor could trade the accused’s passport for a gun.
[50] Ms. Bailey asks this court to focus on what happened next. On 20 June, after he received a text asking “if he still wanted to do the trade”, the accused responded by saying that he was “no longer doing it”. On 11 July, during the conversation in which the accused described his plans for killing C’s children, he told Grewal that he no need for him to get the gun as he knew “he could get it when I really need it”. The accused asked Grewal to hold off until he had sold his passport, something he could not do until his brother had used it to enter the country.
[51] Ms. Bailey argues that viewed as a whole, the evidence demonstrates there was no agreement between Grewal and the accused to obtain a gun. If anything, the conversations post-20 June, show that the accused had lost interest in acquiring a gun. In the absence of an agreement, says Ms. Bailey, there can be no attempt.
[52] In arguing this point, Ms. Bailey relies on R. v. Ellis, 2016 ONCA 358. The accused in that case was convicted of two counts of attempted possession after having agreed to buy a gun from a trafficker and having transferred $300 as payment. After receiving a response indicating that the trafficker had the gun he wanted, the accused asked by text “any pic on anything new?” The trafficker replied that he had an upgrade on the accused’s purchase and also a .45 calibre firearm. The trafficker quoted prices for specific guns - a Colt 45 and an AR rifle - to which the accused responded “Ok ok” and “Sick”. The trial judge found that these messages indicated an agreement to buy the guns quoted and therefore found that this constituted a second attempted possession of a firearm.
[53] The Court of Appeal for Ontario upheld the attempt conviction relating to the gun in which the bank transfer had been made because it was obvious that the accused had agreed to purchase the gun. However, it quashed the second count as the words “Ok ok” were equivocal and that on reviewing the whole of the evidence, it was clear that when the trafficker arrived in Canada he was not in possession of the Colt or the AR rifle that the accused was alleged to have agreed to purchase. Thus, the court found that the words “Ok ok” was merely an acknowledgement of the prices quoted rather than an agreement to purchase, and that in an absence of an agreement to buy the gun – specifically found by the trial judge to have existed - there could be no attempt to possess it.
[54] Ellis is distinguishable from the current case: there is nothing equivocal in the nature of the accused’s requests to Grewal regarding the firearms sought. There is no dispute that he wanted and intended revenge on C. His focus, in the furtherance of his plan, was the acquisition of the firearm. In my view, the attempt was complete when, on 31 May 2012, the accused instructed Grewal to see if he could obtain a “burner”. The accused’s subsequent actions on 6 June 2012 when he produced his preferred list of firearms was his way of showing Grewal that he was serious about obtaining the gun and achieving his objective. The fact that he subsequently told Grewal that he did not have the money to pay for the gun and would need to sell his passport to do so, speaks to his ability to complete the final measure in obtaining the gun and does not detract from the fact that he had taken “the next step” beyond preparation to do so. That there was no “agreement” with Grewal to purchase the gun did not mean that the accused had not taken steps beyond merely preparatory to get possession of it: R. v. Root, 2008 ONCA 869.
[55] I also reject Ms. Bailey’s argument that Grewal’s recollection of his unrecorded conversations with the accused should be treated as unreliable. Ms. Bailey bases this claim on the alleged uncertainty surrounding the conversation of 13 June 2012. She submits that this meeting cannot have taken place on that date as Grewal has no notes and there appears to have been no Mobile Support Services present. Although I agree that it unusual for Mobile Support Services to be absent in these circumstances, I am prepared, in the absence of contrary evidence to accept Grewal’s explanation that his notes of 13 June have been lost. Having heard Grewal’s testimony, I find no reason to doubt his recall of the conversations he had with the accused.
[56] For these reasons, I find that the Crown has proven that the accused attempted to possess a firearm beyond a reasonable doubt and I find the accused guilty of that offence.
[57] In closing I would like to take the opportunity of commenting on the skill and the manner in which both Ms. Pancer and Ms. Bailey proceeded in conducting this matter. Their co-operation, organisation, and concessions meant that this trial, originally scheduled for seven days, was completed in half that time. Their conduct as counsel is to be applauded and should be held up as an example of how criminal trials should be run. I commend both of them for their efforts.
S.A.Q. Akhtar J. Released: 6 March 2017
