Court File and Parties

Court File No.: CR-19-4000191-00MO Date: 2020-05-14 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Birhan Imam

Counsel: P. Alexander, for the Crown W.G. Orr, Q.C., for the Applicant

Heard: 27 April 2020

Before: S.A.Q. Akhtar J.

Factual Background and Overview

Introduction

1The applicant, Birhan Imam, was committed on 6 September 2019 by Vaillancourt J. of the Ontario Court of Justice to stand trial on the charges of attempted murder, aggravated assault, and carry concealed weapon contrary to the Criminal Code.

2The applicant applies for an order of certiorari to quash the count of attempted murder alleging that the preliminary inquiry judge committed jurisdictional error by applying an erroneous legal test when determining whether there was some evidence that the applicant had the required mens rea for that offence. The applicant does not allege any errors in his being committed on the remaining counts.

The Crown’s Case

3On 8 May 2018, the applicant, Birhan Imam, was at the Empress Walk Mall in North York and seen to approach the victim in this case. One witness, Sara Shafaat, called at the preliminary inquiry, said that the victim walked away but was followed and grabbed by the applicant. A struggle ensued between the two men which resulted in both falling to the ground. The applicant took out a knife from his pocket and began stabbing the victim.

4The stabbing was captured on video by Ms. Shafaat using her mobile phone. It depicts approximately 30 stabbing motions aimed around the upper torso, neck and head areas. During the course of the attack, the victim raised his arms around his head assuming a defensive position. Bystanders, including a security guard, attempted to intervene but had little success. A female voice can be heard on the video yelling “Stop, stop”.

5The applicant was eventually pulled away from the assault and can be seen on the video walking away from the victim who lays motionless on the floor. Additional video clips show the applicant being followed out of the mall and civilians tending to the prone victim.

6When police arrived on scene, the applicant was identified by a security guard and arrested. Subsequently, the same guard viewed a security video which showed the applicant pursuing the victim just prior to the attack.

7Another witness, Gokul Paruthikat, also testified at the preliminary inquiry and told the court that from his observations, the victim initially brandished the knife but it was taken from him by the applicant. According to Mr. Paruthikat, once the applicant took hold of the knife, he proceeded to stab the victim approximately five times.

Legal Principles

8The Criminal Code provisions relating to committal can be found in s. 548(1), which reads as follows:

When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

9The well-known test for deciding committals is found in United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080, which instructs that if there is sufficient evidence of criminal charges upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit an accused person to stand trial on those charges.

10A preliminary inquiry judge is not permitted to weigh the evidence or make credibility findings. If the Crown has adduced direct evidence on all elements of the offence, the preliminary inquiry judge must commit the accused even in the face of exculpatory evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 29.

11The preliminary inquiry judge is permitted to engage in a “limited weighing” exercise when the Crown relies upon circumstantial evidence to justify committal. When they do so, the judge does not draw inferences from facts or assess credibility but evaluates “the reasonableness of the inferences to be drawn” from the circumstantial evidence: Arcuri, at paras. 29-30. Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R. v. Wilson, 2016 ONCA 235, at para. 24; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18.

12If there is no evidence on an essential element of the charge, it is a jurisdictional error to commit an accused for trial: United States of America v. Shephard, at p. 1080. It is also important to note that, on review, the preliminary inquiry judge’s determination of the sufficiency of evidence is entitled to the greatest deference: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48.

13In Sazant, at para. 25, the Supreme Court of Canada identified three ways in which jurisdictional error might occur in the context of a preliminary inquiry:

(1) where the judge misunderstands the elements of the offence and fails to evaluate the Crown’s evidence against the correct position in law;

(2) where the judge prefers an inference favourable to the accused over an inference favourable to the Crown; and

(3) where the judge fails to consider the whole of the evidence.

Did the Preliminary Inquiry Judge Commit Jurisdictional Error?

14This hearing concerns only a very narrow issue: did the preliminary inquiry judge correctly identify and apply the mens rea required for attempted murder when deciding there was some evidence of the offence?

15In R. v. Ancio, [1984] 1 S.C.R. 225, the Supreme Court of Canada redefined the mens rea of the offence as one specifically requiring an intention to kill. In doing so, it overturned the earlier case of Lajoie v. The Queen, [1974] S.C.R. 399, which had found that the mens rea element of attempted murder constituted an intent to cause bodily harm which the accused knew was likely to cause death and was reckless as to whether death would ensue.

16The preliminary inquiry judge, in oral reasons, identified the test for committal and the mental element of attempted murder in the following manner:

The test to be applied for an order to stand trial is set out in The United States of America v. Shephard, [1977]2 S.C.R. 1067, wherein Justice Ritchie, writing for the majority said,

“I agree that the duty imposed upon a justice under s.475(1) [now s.548(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”.

The test for committal is the same whether the evidence is direct or circumstantial. If it’s direct evidence, the justice must commit; if it is circumstantial, the justice must engage in a limited weighing of the evidence. A judge must merely make an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence, R. v. Arcuri 2001 SCC 54 , [2001] 2 S.C.R. 828.

A conviction for attempt murder requires proof of the specific intent to kill. The authority is R. v. Ancio, [1984] 1 S.C.R. 225.

17The judge then summarised the facts including the medical evidence which identified the multiple stab wounds before culminating with the following comments:

The evidence I conclude at this stage indicates an unprovoked sustained attack by the accused on the victim resulting in serious injuries. Plunging a knife into the victim in the manner displayed shows a wanton disregard for the consequences to the victim, including the real possibility of death.

I find the assault has all the hallmarks of an attempt murder and it was just fortuitous the knife did not strike a vital organ causing death. I am satisfied that there is sufficient evidence to warrant a committal on the attempt murder count. There is no question that the injuries amount to an aggravated assault. Therefore, there is a committal on that count. [Emphasis added.]

18The applicant submits that the underlined passage demonstrates that the judge applied an incorrect test for determining the mens rea of attempted murder. The applicant argues that, in effect, the judge used the test for determining murder that was formerly required in Lajoie as opposed to the intention to kill mandated by Ancio.

19In seeking certiorari, the applicant relies upon the first method of jurisdictional error identified by the court in Sazant, at para. 25, set out as follows:

First, the preliminary inquiry judge may have entirely misunderstood the elements of the offences of indecent assault and gross indecency and given effect to a non-existent defence, as suggested by my colleagues, Bastarache and Fish JJ. This interpretation, on its face, would be contrary to what the preliminary inquiry judge said about what he regarded as changes in the law of consent since “the 1970’s”. If indeed this was the basis of the preliminary inquiry judge’s decision, it would also mean that the preliminary inquiry judge had never tested the Crown’s evidence against the actual elements of the offences charged. In that event, the reasoning of this Court in Dubois, supra, at pp. 378-79, is applicable:

This is not a case where the reviewing judge merely thinks that the justice was wrong, in the sense that if the reviewing judge had been sitting at the preliminary inquiry, he would have reached a different conclusion as to the sufficiency of the evidence. It is a case in which the real complaint is that the exercise of weighing the evidence proceeded on an entirely erroneous basis in law, which in turn goes to the mandate issued by Parliament ... . [Emphasis added.]

20See also: R. v. Kamermans, 2016 ONCA 117, 346 O.A.C. 31, at paras. 14 and 18.

21The Crown, on the other hand, argues that when read as a whole, the preliminary inquiry judge did indeed apply the correct test and simply omitted the words “showing an intention to kill” at the end of the sentence describing “the real possibility of death”.

22Upon review of the reasons, I agree with the Crown.

23The preliminary inquiry judge was required to consider the evidence as a whole: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at paras. 33-35. Here, the judge reminded himself of the Ancio test before explaining his reasoning. When read in totality, the judge’s reasons show that he was fully aware of the mens rea required to establish the offence of attempted murder. His remarks on the manner in which the stabbing occurred must be read in conjunction with his prior acknowledgement of the correct legal test of the intention to kill.

24I read the impugned passage, along with the earlier identification of the Ancio test, as the preliminary inquiry judge’s determination that the applicant’s “plunging the knife” with “a wanton disregard for the consequences to the victim” demonstrated an intention to kill.

25Accordingly, I reject the argument that the judge proceeded on an erroneous basis in law and find that the judge committed the applicant for attempted murder using the correct principles.

26The application is accordingly dismissed.

The Discretion to Refuse a Prerogative Remedy

27If I am wrong on the issue of jurisdictional error, I would still dismiss the application and decline prerogative relief on the basis that the applicant has suffered no prejudice.

28I arrive at this decision because I find that even if the judge had misapplied the mens rea component of attempted murder there was sufficient evidence before him to commit on that count.

29The evidence comprised the following facts:

• The applicant pursuing the victim
• The applicant removing a knife from his pocket
• The applicant continuously stabbing (over 30 times) the victim around his head, neck and torso
• Medical evidence describing cuts to the arms, head and neck area consistent with the defensive pose adopted by the victim
• The existence of two significant wounds: one through the right hemidiaphragm and one through a segment of the liver which required surgery.

30In Sazant and Deschamplain, the Supreme Court of Canada indicated that when a preliminary inquiry judge had exceeded jurisdiction by wrongly discharging an accused of a count or counts with which they were charged, the proper course of action by a reviewing court would be to remit the case back to the same judge to reconsider the issue of committal.

31In R. v. Thomson (2005), 74 O.R. (3d) 721 (C.A.), the Court of Appeal for Ontario held that the Criminal Code did not confer power on a reviewing judge to order an accused to stand trial after finding the preliminary inquiry judge had committed jurisdictional error by refusing committal. The court held that the case had to be returned to the preliminary inquiry judge and, if committal was the only possible result, an order of mandamus directing committal should also issue.

32Unlike this case, Sazant, Deschamplain and Thomson all dealt with situations where the preliminary inquiry justice had exceeded jurisdiction by erroneously discharging criminal charges. Here, the applicant alleges that the error arises from an erroneous committal.

33The Crown submits that this is a significant difference.

34In R. v. Papadopoulos (2005), 201 C.C.C. (3d) 363 (Ont. C.A.), the appellants argued two jurisdictional errors committed by the preliminary inquiry judge: (1) a breach of natural justice caused by the failure of the judge to hear submissions on a legal issue and (2) the judge committed the appellants to stand trial on the charge of first degree murder in the absence of any evidence supporting that charge. The reviewing judge agreed that the preliminary inquiry judge had committed jurisdictional error on the first ground but declined to order certiorari to quash the committal because, in his view, the appellants had suffered no prejudice. The reviewing judge found support for this course of action in R. v. Harrington (2004), 181 O.A.C. 395 (C.A.).

35On appeal, the Court of Appeal upheld the reviewing judge, making the following comments at para. 17:

It makes no sense that a reviewing justice, at the superior court level, should have no choice but to quash a committal in the event of a jurisdictional error resulting from a denial of natural justice, whereas the court of appeal reviewing that same decision may deny to quash on the basis of the proviso – in spite of the jurisdictional error – because there has been no prejudice. The fate of a committal for trial should not depend on whether a party must take a further appeal.

36Citing the jurisdiction of the Superior Court of Justice as a court of general jurisdiction possessing inherent jurisdiction, the court went on, at paras. 19 and 21, to confirm the court’s discretionary power to refuse to quash committals even in cases of jurisdictional error:

This jurisdiction, in our view, empowers the reviewing judge to exercise a “proviso-like” discretion to refuse to quash a committal where the accused has suffered no prejudice because the committal would otherwise have been inevitable, even where there has been a denial of natural justice. In this case, the reviewing judge declined to grant the extraordinary relief of certiorari because the alleged error ultimately made no difference.

We see no reason in principle why, if the discretion may be exercised to refuse a prerogative remedy in the face of jurisdictional error in some circumstances – such as those referred to above – it may not be exercised likewise in appropriate circumstances where there has been no prejudice to the applicant whether or not there was a denial of natural justice leading to jurisdictional error because the committal would otherwise have been inevitable. In our opinion, Harrington is an example of one such case, and the reviewing judge was justified in following it in the circumstances of this case.

37In the unreported decision of R. v. Abdi (25 July 2019), Toronto (S.C.), Forestell J. cited Papadopoulos as authority when refusing to quash a committal of firearms charges. In her view, even if the preliminary inquiry judge committed jurisdictional error by failing to consider the whole of the evidence, committal was inevitable.

38It seems clear that the law recognises differences in prerogative remedy depending on whether a preliminary inquiry judge erroneously committed or discharged the accused. The distinction accords with the reasoning in Thomson which was based on the absence of power to commit in cases of discharges resulting from jurisdictional error. Where an accused has already been committed through jurisdictional error, the reviewing court is not re-committing the accused but declining to quash the committal.

39Turning to the circumstances of this case, I find that the evidence described previously constitutes some evidence of the intention to kill as well as the actus reus of attempted murder. Committal was therefore inevitable and, accordingly, I decline to quash the committal of attempted murder.

40For the foregoing reasons, the application is dismissed.

41In closing, I would like to thank both counsel for their very helpful submissions.

S.A.Q. Akhtar J.