RULING ON COMMITTAL PROCEEDINGS

Ontario Court of Justice

Her Majesty the Queen v. Said Egal

Before the Honourable Madam Justice G. Sparrow August 1, 2014, at Toronto, Ontario Courtroom 124

Publication Ban

"INFORMATION CONTAINED HEREIN IS BANNED FROM PUBLICATION PURSUANT TO SECTION 539 OF THE CRIMINAL CODE OF CANADA TO AN ORDER MADE BY HER HONOUR JUSTICE G. SPARROW ON THE 5TH DAY OF JUNE, 2014"

Appearances

Ms. M. Newhouse – Counsel for the Crown

Mr. P. McCool – Counsel for the Accused

Ruling on Committal

SPARROW, J. Orally:

The accused is charged with two counts of attempt murder of Raheem Mitchell and Nishan Singh. He is also charged with:

1. Pointing a firearm at both of them without lawful excuse
2. Discharging a firearm at each of them with intent to endanger their lives
3. Using a firearm in a careless manner without lawful excuse
4. Using a silver handgun in a careless manner
5. Possessing a handgun without being the holder of a licence

The Crown called several witnesses to describe a shooting incident that occurred on August 25th, 2013, during which Raheem Mitchell was shot in the hand and a bullet grazed the left side of the mid back of Nishan Singh.

Defence counsel argues:

1. That the accused's identity as the shooter has not been demonstrated sufficiently to meet the test in R. v. Sheppard, 2002 SCC 26
2. That even if a properly instructed jury could reasonably find that the accused was the shooter, there is insufficient evidence of all of the elements of attempt murder to meet the test in R. v. Sheppard

Undisputed Facts

Many of the facts are undisputed. The victims were two of seven young men who arrived at a townhouse complex known as Swansea Mews in three cars just before 3:00 a.m. on the date in question. They drove in and then out of the entry road and ultimately parked their cars nearby on Windermere Avenue. Video cameras revealed that they returned on foot to the complex at 3:26 a.m., then walked up a staircase and down a long patio or deck lined by housing units on the top floor of the complex. The camera shows that they walked two or three feet apart from each other.

Ultimately, although the video cameras did not trace the route completely, the group walked down a staircase towards the south end of the complex and west along a pathway which ultimately goes out of the complex towards the street where the cars were parked.

As they followed the path west in front of a parking garage they all saw a male and female couple standing in the garage entry way. A brief encounter occurred between the victim, Mitchell, and the male.

The group, including Mitchell, kept on walking. When they were approximately 25 to 30 feet from the couple shots rang out; bullets hit Mitchell and Singh as described above.

Video cameras reveal that at 3:10 a.m. a couple is seen on the upper deck of the complex. The female walks southbound down the long deck; the male steps eastbound towards unit 94, admitted to be the family home of the accused. They ultimately rejoin at the south end of the deck, walk down the stairway and walk along the outer pathway towards the south end of the complex where the shooting occurred. They are last seen on camera approaching that area at 3:16 a.m.

The couple is next picked up on camera at 3:35 a.m. on the pathway on the east side of the complex in the area of a staircase; they are walking briskly, then running. They disappear from the camera view, but re-emerge on the top level, walking northbound on the deck towards the area where they were first seen.

The video camera reveals that the male is black, wearing a baseball cap, a dark hoodie with a design or writing on it, and lighter pants with a dark marking on the left calf.

Toronto Police executed a search warrant at unit 94, the accused's home. In a bedroom they located:

a) A dark hoodie with the word "Adidas" written on it b) A black and white baseball cap with a red brim and the name "Chicago Bulls" on it c) A pair of somewhat light grey sweatpants with the name "Nike" in large letters on the left calf area

On the closet shelf underneath the hoodie they located a box, which contains 25 gun cartridges labelled "Hornady". Twenty of the shells were missing from the box.

A test of the sweatpants revealed gunshot residue. Two gunshot casings were found in the area of the garage entryway labelled "Hornady". Officer Holubko who executed the warrant testified that his brand of shell is seen relatively infrequently.

Testimony

Raheem Mitchell

Raheem Mitchell testified that he arrived at the complex with his friends Shaquil Brown (also known as Barr Brown) and Densil Davis, where they were joined by Nishan Singh, Trivan Mitchell, Kaelyndo Bennett and Shane Williams. He said that he was there to visit another friend, Alex. He started to feel uneasy because he had been robbed on a nearby street shortly before this and decided to leave after about three to four minutes.

He testified that other than two girls sitting on a bench he saw no one until he passed by the parking garage where the couple stood in the entrance. The male nodded at him; he nodded back. A couple of seconds later, when he was about 30 feet further down the path, he heard someone yell "Hey". He turned around and saw the male with his arms thrust forward pointing a silver gun in his direction. The male put his hand down, racked the gun and fired, hitting Mitchell's hand with the bullet going through it.

He testified that he turned around and ran; three more shots were fired. He and the friends he arrived with had been walking close to him; they drove to the hospital where he had surgery for broken bones in his hand. He remains under treatment for pain and other complications. He did not know what happened to the others.

Mitchell testified that he had never seen the male before, but looked at him for about 30 seconds in the garage entry where he stood under a light. He also looked at him for one to two seconds after he yelled "hey". He said that his friends Shaquil and Densil were close to him; the rest of the group was about five feet behind.

Mitchell described the accused as about five foot seven inches with puffy hair and a ponytail, slim build and no facial hair, wearing a dark hoodie with white markings and the hood up. He then identified the accused in dock.

When shown the video of a couple walking in the direction of the garage shortly before the shooting, Mitchell identified the male as the shooter and as the accused before the court, because of his height, weight and ponytail. He identified the female as the woman standing with the accused in the garage entry.

In cross-examination, he maintained that he did not know why he was shot at or if he was the principle target. He said that Shaquil was two feet to his right and that the group was walking in an eight foot radius.

Nishan Singh

The second victim, Nishan Singh testified that he understood through his friends, Trivan and Kaelyndo that they were going to Swansea Mews to confront the person who robbed Raheem Mitchell and to be "ready for a fight."

He arrived with Trivan at Swansea Mews, which was the place identified by Mitchell. At some point after 2:00 a.m. he left a few others in his parked car and joined the group.

He testified that he walked the route described by Mitchell, remaining at the back with Trivan and Shaquil. When they got to the area of the garage he saw a couple and heard a request for marijuana. He said that Mitchell was "closest to the guy", two to three feet away. Kaelyndo, Shaquil and Densil were two feet back; he, Shane and Trivan were nine to ten feet back.

Singh testified that he then heard a boom sound and heard Raheem say "my hand". He turned around towards the source of the sound and saw a male with his arms forward. As he turned around to run away along with the others he felt a "boom" hit him, which he thought was fireworks. He discovered in the car that his back had been grazed on the mid left side by a bullet. He went to hospital where he received treatment.

Singh assumed that the shooter was the male at the garage as there was no one else around. He said that he did not get a good glimpse, but described him as dark black and skinny, six foot two to six foot three inches tall, wearing a black hoodie, black pants and a red and white baseball hat. He stated that he could not identify the male in a police photo line-up or the couple walking in the complex in the video.

Trivan Mitchell

Trivan Mitchell, 20, testified that although he did not know the purpose of the gathering he did not have a good feeling about it and his chest tightened up when he got there. He said that he was at the back of the group when he saw Raheem "talking to the person who shot him for about 30 seconds at the garage." He heard one of them mention weed. When he got about 25 feet past the garage he heard someone say "yo"; he turned around and saw someone pointing his arms forward at the group, something silver-ish and a flash. He heard three popping sounds about three seconds apart.

He said that he and Nishan were at the back of the group. He identified the male with the silver item as 17 to 19, black, medium build, and about six foot one inches with long hair tied back and wearing a black hoodie. He described the shooter's face as "threatening" and said that there was a bright light over the garage.

When shown the video of the couple walking around the complex he said that they looked like the shooter and the girl.

In cross-examination he said that Mitchell was facing the shooter when he got shot. He agreed that the shooter's pants were black or navy. He said he had heard about the robbery before they went to Swansea Mews, but only learned of the plan to confront after the fact.

Shane Williams

Shane Williams, 18, testified that he wasn't sure why he was asked to come to Swansea Mews to meet up with Raheem and others. He thought it was stupid. He said that he was at the end of the convoy; Trivan and Nishan were in front of him.

He testified that he heard Raheem ask the male in the parking entry for marijuana, but he didn't hear the answer. Raheem was about six feet from the male. When he was about 25 feet from the male he turned around and started walking backwards because he felt nervous. He saw the male pointing a silver gun, saw a flash and heard two or three shots. The shooter was about 25 to 30 feet away.

In cross-examination he denied that the shooter might have come down the stairs beside the garage just before the shooting as he was at the back and would have noticed this. He said that he knows what Somalis look like, but said that he could not tell if the shooter was Somali as he was wearing his hood up over a white baseball cap with a red brim.

Densil Davis

Densil Davis, 21, testified that he is a friend of Mitchell's and like him, he wanted to visit a friend at Swansea Mews. He followed him through the complex and thought he was at the back because at one point they went up a staircase looking for a short cut. He heard the male in the entryway say something, turned around and saw him reach for a gun and make the motion of pulling a slide back. He said that two or three shots were fired at a distance of about 25 to 30 feet from the group.

He described the male as black, dark in skin tone, five foot six inches to six feet tall, slim build, age 15 to 25, wearing Nike marked sweatpants, a hoodie and a black and red baseball cap. When shown the video of the couple he said they looked like the couple at the garage and "the male who shot at us".

In cross-examination he acknowledged that he didn't actually see a gun, but thought it was a gun because of the racking motion. He did not know why the shooting occurred.

Kaelyndo Bennett

Kaelyndo Bennett, 19, gave testimony similar to the others about the route they took and said they were looking for Raheem's robber. He said that Raheem was at the front of the group and he was in the middle, past the two people at the garage when someone yelled "yo". He did not turn or see a weapon, but heard two or three shots fired.

He described the man in the garage as having a darker black skin and as Somali, early to mid 20's, slim, average height, with long hair wearing a black baseball cap with red trimming. He identified the couple in the video as the couple he saw at the garage.

Shaquil or Barr Brown

Shaquil or Barr Brown testified that he was at the front of the group when he heard the noise of either fireworks or gunshot - maybe three noises. He did not see the shooter and did not know why they were at Swansea Mews. He attended hospital with Raheem Mitchell.

Police Constable Calvin Bulbrook

Police Constable Calvin Bulbrook testified that he has known the accused before the Court since 2007 and has had 50 to 100 interactions with him. He saw him outside his home, unit 94, at about 11:30 p.m. on August 24th wearing grey track pants, a tank top and a "bunchy" ponytail. He said he has dark black skin, is Somalian or Ethiopian, skinny, five foot nine to five ten, 140 to 145 pounds and 19 years of age at the time.

Bulbrook's evidence of identification was admitted only for the purpose of identifying the accused as the man he saw at 11:30 near unit 94 and not to show that he was the shooter.

Findings: Identity

With respect to the identity issue, the Crown argues that Mitchell's in dock identification constitutes direct evidence from which a properly instructed jury could reasonably infer that the accused was the shooter. There is therefore no need to consider the circumstantial evidence of identity, which is subjected to the limited weighing permitted by a long line of jurisprudence: see R. v. Arcuri, 2001 SCC 54. She relies on R. v. Roberts, [2014] O.J. No. 1318 and cases cited therein for the proposition that in dock identification evidence is direct and therefore automatically meets the test for committal.

The Identity Issue

Defence counsel argues, as did appellant's counsel in R. v. Roberts, that the in dock identification by Mitchell was of no value as it was based on merely a 30 second interaction at the garage entryway. I note that in the recent case of R. v. McDonald released February 26th, 2014, Ontario Superior Court of Justice Hill, J. found that in dock identification of a customer in a fast food restaurant by an assistant manager who had little opportunity to view the accused was valueless.

Ultimately I need not decide if the in dock identification in this case allows for committal. As submitted by the Crown, there is more than sufficient circumstantial evidence upon which a jury could reasonably find that the accused was the shooter.

With respect to the accused's appearance, the evidence includes:

1. The description of the accused by all witnesses who saw the shooter as dark black in colour, with a slim or skinny build and long puffy black hair, in his late teen's or early 20's, wearing a black hoodie
2. The description of his hair as being in a ponytail by three witnesses
3. The description of his baseball cap as black with red trimmings by four witnesses
4. Davis' description of the shooter's pants as bearing the Nike logo

A reasonable inference can clearly be drawn from this evidence that the man in the video is the shooter. In my view, a reasonable inference can also be drawn that the man in the video is the accused.

Although the video is not extremely clear, the man clearly has dark black skin and a slim build, with puffy hair pulled back and a hoodie pulled over a multi coloured baseball cap. He is wearing light coloured sweatpants with writing on the calf.

The man's clothes in the video largely match the description of the shooter's clothing by the witnesses and the clothing which was found in the accused's bedroom. The description of the baseball hat by the witnesses matches the hat found in the bedroom, black and white with red trim. Davis' description of the pants – showing a Nike logo - matches the pants in the room. On the video the man approaches unit 94, the accused's home.

The accused before me looks about 20 years of age, is dark skinned and slim with puffy hair. A similar description of the accused was provided by P.C. Bulbrook and other witnesses.

Other evidence pointing to the accused as the shooter includes the fact that the gunshot residue was found on the Nike pants in his room. The cartridge box in his room was almost empty and the cartridges were Hornady, the type found near the scene.

On all of the above evidence a properly instructed jury could reasonably find that the shooter is the man walking to and away from the scene on the video and is the accused before the Court.

Intent to Kill

It is clear law that in order to prove a charge of attempt murder the Crown must prove that the assailant had the intent to kill: see R. v. Ancio. At a preliminary inquiry the test for committal must be met on this issue.

One of the leading cases on proof of intent to kill is R. v. Rajanayagam, [2001] O.J. No. 393, an application to quash a committal for trial. The accused shot some preliminary shots into the air and then shot the victim three times in the upper calf area while holding him down with his foot on his neck. The victim stated this his bones were shattered, but there was no evidence that the injury was life threatening.

Campbell, J stated at paragraph 18:

"It is impossible to draw a bright line in every case between gunshots that provide evidence of intent to kill and gunshots that do not. It is entirely a question of degree having regard to all the circumstances including the firearm, the range, the calibre, the load, the projectile, the number of shots, the aim and the vital or non-vital portion of the anatomy struck by the bullet."

He concluded that there was no evidence that the shots were directed at a vital part of the anatomy, no evidence that the wounds were life threatening and no other evidence such as plan or motive of intent to kill. Committal for trial was therefore quashed.

The Crown relies on the following cases, which determine the variety of factors, which demonstrate intent to kill:

1. R. v. Lafleur, [2000] O.J. No. 3961, a case of a shot to the groin in which Then, J. stated at paragraph 16, "No doubt the firing of more than one shot would have been more probative of the requisite intent."

2. R. v. Payne, [2013] O.J. No. 3412 in which Then, J. stated that "Factors to be considered include the nature of the weapon, evidence of premeditation or spontaneity and the presence or absence of defensive motivation."

Defence counsel submits that, in short, there is no evidence of intent to kill based on the indicators listed above. He relies particularly on R. v. Munoz, [2006] 3269 for the proposition that inferences to be drawn in cases of circumstantial evidence must be reasonably based on established facts, not on conjecture or speculation.

The Crown responds by stating that according to R. v. G.W., [1996] O.J. No. 3015, only a scintilla of evidence must be presented on each element of the offence.

The key question, then, is "even if there is a scintilla of evidence, can a reasonable and logical inference of intent to kill be drawn from it?"

I agree with defence counsel that some of the factors relied on in cases in which committal was upheld do not exist here. The shots were not fired at particularly close range - according to all witnesses from a distance of about 25 to 30 feet. The shots were not fired directly at the heart or the head, obviously vital areas, and there is no clear evidence of motive.

Four of the witnesses said it was their understanding that the purpose of the walk about was to confront the man who robbed Mitchell; however, this evidence was acknowledged by the Crown to be hearsay and there was no evidence that the shooter was the robber or that any members of the group had confronted him about the robbery.

Nevertheless, in my view a properly instructed jury could infer that the shooter intended to kill based on the following evidence:

1. The shooter fired three shots according to most of the witnesses and four according to Mitchell. In other words, he was not just firing one or two shots into the air to cause alarm
2. At least two of the shots were fired into a moving group of men who were fairly close together - within an eight foot radius, according to Mitchell, so that any of them could easily have been struck
3. The first bullet hit Mitchell's hand, which although not a vital part was obviously close to his groin. The second bullet grazed Singh's left mid back as he turned around; had he not turned it very possibly would have hit the left side of his chest near his heart
4. The shots were clearly fired directly into the group given that one hit Mitchell, the man at the front, and Singh who was further back
5. Although there is no additional admissible evidence of motive there is evidence of some interaction between the accused and Mitchell just before the shooting occurred
6. There is clear evidence that the shooter raised his arm, then racked the gun and aimed once the group had walked 25 to 30 feet. In other words, he had time to formulate intent to kill.

In my view, the above factors taken together constitute sufficient evidence from which an inference of intent to kill could be drawn in order to warrant committal on the counts of attempt murder. It should be noted however that it is clearly not the only inference that could be drawn.

The accused will therefore be committed for trial on counts one and two.

Defence counsel did not argue that different considerations apply with respect to counts five to seven and as stated earlier there is significant evidence that the accused pointed, discharged and used a firearm as described in those counts. He will therefore be committed on those counts, five to seven.

Counsel concedes for the purpose of the preliminary inquiry that his client did not have a licence for the gun. He will therefore be committed for trial on count nine.

Additional Counts

The Crown seeks committal on five more charges of attempt murder with regard to all members of the group other than Mitchell or Singh who are named in existing counts. She relies on the case of R. v. Gordon, 2009 ONCA 170, which she submits adopts the theory of "concurrent intent" relied on in the US case of The People v. Bland (27 California 4th) 313, a decision of the Supreme Court of California.

In R. v. Gordon, the accused had shot three times at a drug dealer. The dealer ran off and three bystanders were hit, suffering serious injuries. The trial judge had instructed the jury that if they found that the accused intended to kill someone they could find him guilty of attempted murder of the bystanders on the basis of "transferred intent." The Court of Appeal overturned the convictions with respect to the bystanders ruling that transferred intent does not apply to the inchoate crime of attempt murder. The Court however states at paragraph 51:

"The Court in Bland pointed out that the conclusion that transferred intent does not apply to attempted murder still permits a person who shoots (or throws an explosive) at a group of people to be convicted of attempted murder, albeit not on the basis of transferred intent. A person will be convicted of attempted murder of any member of a group of persons whom the person intended to kill on the basis of a concurrent intent to kill: Bland at pages 329 to 30."

In Bland, the California Supreme Court states at paragraph 1118 that an accused may be punished for actions towards non-targeted members of a group as opposed to the targeted member by finding him guilty of offences comparable to aggravated assault.

The Court goes on to state, however, that an intent to kill may be found if the accused desired to kill not only a particular target but others within a "'kill zone'" - for example passengers on a plane who are not the target but will be killed by a bomb or persons accompanying a target who are killed by a weapon fire or a device devastating enough to kill everyone in the group.

The Court states at paragraph 1118.330:

"The defendant has intentionally created a kill zone to ensure the death of his primary victim and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim."

In my view, the Court in R. v. Gordon makes reference to R. v. Bland to explain the difference between transferred intent and an intent to kill an entire group. The Court does not clearly adopt the concept of concurrent intent. In any event, the concept as described simply refers to the intent to kill a particular target plus all members of an identifiable group to ensure that the killing of the target is a success. It does not create, in my view, a new or distinct type or theory of criminal intent.

In my view, even if the theory of concurrent intent has been adopted by the Court of Appeal, it cannot be used in this case to found committal on charges of attempt murder of all members of the group who ran from the shooter. On all of the evidence three or possibly four shots were fired; the group had seven members. Only two of seven were hit including Mitchell, who appeared to be leading the group and had an interaction with the shooter, other than Singh, the rest were untouched.

Ultimately the Crown has not produced evidence upon which a properly instructed jury could reasonably find that the shooter intended to kill any or all members of the group who were not hit. The accused will not be committed on the additional counts sought by the Crown.

It should be noted that this Court discussed the possibility of a committal on a charge of attempting to murder one or more members of the group, which might enable the jury to find that the shooter was not trying to kill any particular member of the group, just whoever he could, as they walked away together.

The Crown rejected this suggestion as too vague and stated in a nutshell that certain adjustments could be made to the indictment in any event. There will therefore be no committal on any additional charges.

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

EVIDENCE ACT

I, SHERRY RACICOT, certify that this document is a true and accurate transcript of the recording of R. v. EGAL heard in the Old City Hall held at 60 QUEEN STREET WEST taken from Recording No. 4811-124-20140801-100544, which has been certified in Form 1.

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