DATE: 2006-10-12

DOCKET: C45522

COURT OF APPEAL FOR ONTARIO

RE: Her Majesty the Queen (Respondent) – and – Mohammed Al Ghazzi (Appellant)

BEFORE: Cronk, Lang and MacFarland JJ.A.

COUNSEL: Brian H. Greenspan for the appellant Lucy Cecchetto for the respondent

HEARD & RELEASED ORALLY: October 5, 2006

On appeal from the decision of Justice S. Rogin of the Superior Court of Justice, dated March 25, 2006, dismissing an application to quash the committal order of Justice G.F. DeMarco of the Ontario Court of Justice, dated July 27, 2005.

ENDORSEMENT

[1] The appellant appeals the dismissal of his application to quash his committal for trial on a charge of first-degree murder. He maintains that the preliminary inquiry judge committed jurisdictional error by failing to consider the whole of the evidence adduced at the preliminary inquiry when determining whether to commit the appellant for trial on the offence charged. In particular, he argues that there was no evidence of the mens rea for first-degree murder adduced at the preliminary inquiry and that the evidence that was adduced was not reasonably capable of supporting the inference that the appellant had the requisite intent for murder. As a result, he asserts, he should have been committed for trial on the offence of manslaughter only. We disagree for the following reasons.

[2] We note at the outset that the scope for review of the committal decision of a preliminary inquiry judge is very limited. As observed by Hill J. of the Superior Court of Justice in R. v. Coke, [1996] O.J. No. 808 (Gen. Div.), any reasonable interpretation or permissible inference from the evidence adduced at a preliminary inquiry, if properly admissible against the accused, must be resolved in favour of the prosecution. However, there must be some evidence regarding the constituent elements of the offence charged. In this case, therefore, this requirement applies to the elements of the offence charged relied upon by the Crown as establishing a planned and deliberate murder and/or a homicide committed while the victim was unlawfully confined.

[3] The appellant's challenge of his committal rests on the contention that, while there was evidence of planning and deliberation to cause harm to the victim, there was no evidence of planning and deliberation to cause the victim's death, that is, to cause bodily harm that the appellant knew was likely to cause the victim's death. The appellant further argues that a committal for murder under s. 231(5) of the Criminal Code was not available here because there was no evidence to support the claim that the appellant played an active, essential or integral part in the conduct that caused the victim's death.

[4] But, in our view, even if the parties' original plan concerned only the intent to assault, rather than the intent to kill, the victim, there was evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty on the offence charged. The evidence led by the Crown, if accepted, would establish that:

(1) when it became apparent during the altercation in the taxicab, to the appellant's knowledge, that the assault on the victim was accelerating to a murderous attack, the appellant initially expressed concern but thereafter continued to drive the taxicab in which the victim was forcibly confined, while the victim pleaded aloud for his life, without stopping the car or otherwise curtailing his companions' actions. Moreover, he continued to do so for at least some time given that the forensic evidence indicated that approximately five minutes were required to inflict the blows sustained by the victim;

(2) although the other assailants in the taxicab wore masks in an effort to conceal their identities, the appellant was unmasked throughout;

(3) when the parties lured the victim into a situation of confrontation, they came equipped with a lariat, the use of which had earlier been demonstrated in the appellant's presence, as well as a baseball bat;

(4) after the fatal incident, the appellant told his girlfriend that "we killed him". It is telling that, in recounting the events to his girlfriend, the appellant did not say "they killed him". The appellant's statement was unqualified when made, although in a conversation with his girlfriend later the same day, he claimed that he had not done any-thing wrong; and

(5) after the incident, the appellant also told his sister that he had confided to a friend that he had killed someone.

[5] In our opinion, if accepted, this evidence would at least support the inference that the appellant by his conduct actively and directly facilitated the murder of the victim during the victim's forcible confinement in the taxicab. This evidence could also be regarded by a properly instructed jury as supporting the Crown's theory that the murder was both planned and deliberate.

[6] Accordingly, the appeal is dismissed. We thank both counsel for their able assistance to the court.

"E.A. Cronk J.A."

"S. E. Lang J.A."

"J. MacFarland J.A."