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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

Court File No.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen

M. Mandel, for the Crown

— And —

Corey Denton & Damion Pryce

G. Zoppi for Mr. Denton; W. Jacksa for Mr. Pryce

Heard: January 21, March 13, June 9, 19, 2015

Decision

FELDMAN J.:

Charges and Overview

[1] At this preliminary inquiry Corey Denton and Damion Pryce are charged with 6 counts of Attempted Murder, 4 counts of Aggravated Assault, 2 counts of Careless Use of Firearm, 2 counts of Weapons Dangerous, and 2 counts of Unauthorized Possession of Firearm. Mr. Denton is also charged with Fail to Comply with a Recognizance.

[2] It is alleged that the defendants, as shooter and party to the offences, attempted to murder three persons in a car parked near a nightclub in Scarborough with a firearm. The accused contend that the identification evidence is insufficient to the degree that a committal for trial is unwarranted.

The Evidence

The Evidence of Ryan Sanford

[3] On January 29, 2014, Ryan Sanford, one of the purportedly intended victims, met two friends, Patrick White and Randy Garner, outside Caddy's nightclub between 7-8 p.m. He took note of the two accused, as part of a group of four black men who had emerged from a Honda Civic, stare down Garner, White and three others with them at the bottom of the stairs leading into the 'strip joint'. Sitting close by in Mr. White's car, he was in a good position to make these observations.

[4] Mr. Sanford identified and described the two accused. He said one wore a beige denim Charhartt jacket, popular with elevator mechanics, who was taller than the others, at about 6'3", of medium build, at least 200 lbs, black with a lighter complexion, an appearance that reminded him of J. Cole, a pop artist, having short hair and in his late twenties or early thirties. He told the police that this person was clean shaven and not wearing a baseball hat. Video surveillance indicated that he had a goatee and had on such a hat.

[5] He said the second man was about 5'9", black, quite slim, about 140 lbs, wearing baggy camouflage green fatigue pants and matching jacket and in his mid-twenties. He said he wore a baseball hat and had white high top shoes. He could not identify the other two men in the group that entered Caddy's.

[6] Video surveillance indicates that the second man, purportedly Mr. Denton, was wearing a dark grey jacket, but no camouflage pants. Mr. Pryce, accompanied by Mr. Denton, is seen in the video purchasing a ticket.

[7] Except for Mr. McDougall, the victims of the shooting did not then enter the nightclub. Ryan said Randy asked him to meet him and Andrew at Ryan's car. Ryan did so and got into the back passenger side of Randy's Mercedes. Andrew was in the front passenger seat while Randy was in the driver's seat. They drove to Rockpile East, a nightclub that was close by in order to smoke a joint. A few minutes later, Randy got out and walked around the corner.

[8] Mr. Sanford told the court that within 1-2 minutes he heard 2-3 loud sounds like firecrackers and saw Randy running back towards his car chased by an individual who came up to the front passenger door and tried to open it. There was another man with him at a distance of 10-15 feet. He later said that the three other men from the group were standing beside the Honda Civic 5-6 parking spots away.

[9] Andrew pulled his open door shut and locked it. The man punched the window, stepped back and pulled out a gun. He fired 10-12 shots. Ryan said he was the tall man wearing the elevator mechanic jacket.

[10] In reviewing outside video surveillance, Ryan identified the shooter as the man who bumped Andrew and then came back to talk to him prior to the group he was with 'staring down' the witnesses and then entering Caddy's. That man is Mr. Pryce, who is only about 6'1". Ryan identified Mr. Pryce, as well, from a video that showed him purchasing a ticket to enter the nightclub.

[11] Mr. Sanford recalls that the first shot went through the passenger side window, with the next 2-3 shots directed at the passenger and driver's sides. Ryan put his head down. He was hit in his right ankle. There were other shots. Randy was unable to start his car as he had left his door ajar.

[12] The shooter returned to his car and drove off with his companions. Randy drove to the Scarborough General Hospital and dropped off Ryan and Andrew, who had also been shot. Ryan required surgery on his ankle.

[13] On May 26, Mr. Sanford failed to pick out either Mr. Pryce or Mr. Denton from photo lineups.

The Evidence of Andrew McDougall

[14] Prior to entering Caddy's, Mr. McDougall said he stood outside with Randy. He told the court that one of the men in the Honda group pulled him aside and said one of his boys had a problem with one Andrew's friends. He also described the 'stare down' that involved Andrew and the person he says was the shooter staring at each other.

[15] Mr. McDougall went in to Caddy's. He told the court he spoke with some of the men from the group. He said one of them was tall and slender, 6 ft or more, wore a black sweater with a black vest, had on a hat and was 160-180 lbs. However, he described the shooter as 5'9", having a darker complexion, with scars or freckles on his face.

[16] He later described that man as wearing a grey jacket and hat, as well as a hoodie. He agrees he may be inaccurate in his description of the clothing as things happened quickly. In cross-examination, he was uncertain about the facial scarring. He estimated his age as late 30s or early 40s. He said this man was staring as if he had a problem with the witness. In court, he agreed Mr. Denton appears to be in his early 20s and has no scars on his face.

[17] Later, he, Ryan and Randy were in the Mercedes. Andrew wanted to be driven home. Randy left briefly to talk to one of his friends, but shortly after that Andrew saw Randy being chased back to the car by a man with whom Andrew ultimately exchanged some punches through his window. He says this was the taller, lighter skinned man. He then saw the second person pull out a gun and start shooting multiple times.

[18] Andrew was hit four times. He was also treated at the hospital and released. He did not participate in any photo lineups, nor did he identify anyone in these proceedings.

[19] Police recovered 15 shell casings, all fired from one gun. There were 10 bullet holes to the passenger side of the Mercedes, 6 to the front passenger door, 3 to the rear passenger door and 1 to the black portion of that door to the right of the window.

[20] These events happened quickly and were likely traumatic for the victims. It is in this context that inaccuracies and inconsistencies in the identification may be viewed. At this preliminary inquiry stage, it is the surveillance evidence that somewhat enhances the objective reliability of otherwise weak identification evidence.

Committal for Trial

[21] There is a low threshold for committal for trial. In United States of America v. Shephard, [1977] 2 S.C.R. 1067, the court held that committal was determined by "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". The Justice is required to commit where there is admissible evidence which could, if it were believed, result in a conviction.

[22] Committal should follow where there is any direct evidence which, if believed, could satisfy each element of the offence even where exculpatory evidence is adduced: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.). The court's task is more complex where any element of the offence must be inferred from circumstantial evidence. In this regard, as explained by McLachlin C.J.C., the judge must engage in a limited weighing of the evidence, in the sense of "assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw".

[23] In this latter regard, counsel for Mr. Denton submits that the evidence is unclear and insufficient to permit an inference that by his participation the defendant was a party to the shooting, in the sense of "encouraging, instigating, promoting or procuring the crime to be committed": R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para 14.

Committal Where the Identification Evidence is Frail

[24] In R. v. Smith, [2004] O.J. No. 6219 (Ont. C.J.), Duncan J. committed the accused for trial in a case of weak identification. In Smith, the witness identified the defendant, a stranger to him, for the first time in court a year and a half after the event. In addition, the witness acknowledged material differences as between the assailant and the accused. In committing the accused for trial, Justice Duncan relied on R. v. Mezzo (1986), 27 C.C.C. (3d) 97 (S.C.C.) that affirmed committal in cases of weak or suspect identification.

[25] That was not the case in R. v. Herrera, [2008] O.J. No. 3040 (Ont. S.C.), where McCombs J. found the identification so contradictory and confusing that it did not amount to identification at all. In Herrera, the complainant identified her assailant in-dock, seven years after the offences. In addition, at some points in the proceedings she identified the accused, while at others she said she could not recognize him. Justice McCombs interpreted her evidence to be no higher than that the defendant looked familiar. There was, as well, some evidence of suggestiveness by the police.

[26] At para 23, Justice McCombs raised the distinction between cases involving frail identification, as in Mezzo, and cases where on the whole of the evidence, the identification does not meet the threshold requirement of positive identification. He went on to point out that while a preliminary inquiry judge is not permitted to weigh a positive identification, he or she is required to consider the whole of the evidence and determine whether an unsure 'identification', or a statement that a person 'looks familiar' amounts to identification at all, much less an identification on which a reasonable jury, properly instructed, could convict.

Does the Identification Evidence Warrant Committal?

[27] Mr. Sanford identified Mr. Pryce in court and on the surveillance videos. He observed him from close quarters smash the passenger window of the Mercedes, engage with Mr. McDougall, pull out a gun and start shooting. In height, skin colouring and style of jacket, Mr. Pryce stood out from others in his group, characteristics noted by the witness. At the same time, there were inaccuracies and inconsistencies in his physical description of the accused and his clothing, related at least in part to the fast-moving nature of these traumatic events. In addition, to complicate matters, Mr. MacDougall identified Mr. Denton, rather than Mr. Pryce as the shooter, with a second person somewhat fitting the latter's description as a participant.

[28] There are material frailties in the identification of Mr. Pryce that will bear on the ultimate determination at trial, but in my view, there is direct, albeit weak identification evidence to be weighed by a reasonable, properly instructed jury that could result in a conviction. Mr. Pryce will be committed for trial.

[29] The identification of Mr. Denton and description of his role in the offences is more problematic. Mr. Sanford identifies him from the surveillance video but inaccurately describes his clothing in testimony. As well, he has him jog behind the shooter to within 10-15 feet of the Mercedes, later placing him with others in the group near their own car at the time of the shooting, but distant from it. Standing alone, this evidence may be insufficient to warrant committal of the accused as a party to the offence.

[30] Mr. MacDougall identified Mr. Denton on the video as the shooter but was not asked to identify him in court. His estimate of the defendant's age, description of his clothing and suggestion of facial scarring were wrong. Considered alone, this evidence is of little value.

[31] However, when looked at as part of the totality of evidence, including the surveillance videos, it permits the inference, when taken together with Mr. Sanford's observations, that Mr. Denton was present at the time of the shooting in a manner that at least encouraged the principal. It would be for a trier of fact to weigh all of the evidence, including the worth of this inference, among others.

[32] Mr. Denton will be committed for trial.

Released: July 23, 2015

Signed: "Justice L. Feldman"