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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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.: 14-RM2313

ONTARIO COURT OF JUSTICE

East Region

BETWEEN:

HER MAJESTY THE QUEEN

-AND-

• MAKADOR ALI
• SABAR BAKAL
• FABRICE BATUBENGA
• JAMES BELANCE
• SHAKIB HUSSEIN EGEH
• SAID FARAH
• RAMADAN OSMAN

Before: Justice David M. Paciocco – Ottawa, ON

Reasons for Decision

Released: December 4, 2015

Counsel

For the Crown: Mr. J. Cavanagh and Ms. A. Levans

For the accused, Mr. Ali: Mr. B. Engel and E. Davies

For the accused, Mr. Bakal: Ms. D. Condo

For the accused, Mr. Batubenga: Mr. R. Carew

For the accused, Mr. Egeh: Mr. J. Addelman and M. Frouhar

For the accused, Mr. Farah: Mr. L. Goldstein

For the accused, Mr. Osman: Mr. A. Brass and Ms. E. Tanny

For the accused, Mr. Belance: Ms. A. London-Weinstein

I. Introduction

[1] In the early morning hours of November 17, 2013, Mr. Afdal Said was discovered, unclothed and in critical condition, under a tree in Andrew Hayden Park. His breathing was shallow. It was obvious that he had been badly injured. The seven accused persons before me are charged with doing this to Mr. Said. Indeed, they are charged with attempting to murder him, contrary to section 239(1) of the Criminal Code. They are also charged with unlawfully confining Mr. Said, contrary to section 279(2), based on an allegation that Mr. Said was kept, against his will, in a Penny Drive townhouse belonging to Jessica Walker while he was systematically tortured and beaten. Each of the men is also charged with unlawful entry, contrary to section 349(1), based on the allegation that they brought Mr. Said into the house in order to continue an assault on him that had occurred outside. As an alternative to the attempted murder charge, all but Mr. Said Farah stand charged with aggravated assault upon Mr. Afdal Said, contrary to section 268(2).

[2] The Crown theory is that all of these offences occurred after Mr. Said was lured to Ms. Walker's Penny Drive townhouse, and attacked in a joint enterprise in retaliation for his role the day before in a similar attack on Isaack Osman, the brother of the accused person, Ramadan Osman.

[3] Some of the accused men are charged with yet additional offences. Mr. Said Farah is charged with obstructing justice contrary to section 139(2) for allegedly cleaning bodily fluids from the vehicle said by the Crown to have been used to transport the injured Mr. Said from Ms. Walker's home to the park.

[4] Mr. Fabrice Batubenga is charged on the information before me with two firearm offences, as well as two counts of breach of recognizance, one for associating with Ramadan Osman, and the other for failing to keep the peace. The Crown has conceded that it has presented no admissible evidence supporting the committal of Mr. Batubenga on the firearm charges, so no more will be said about them, other than to formally discharge Mr. Batubenga on these charges at the end of the decision. The recognizance orders that Mr. Batubenga is alleged to have breached are admitted to have been in force and to carry the relevant conditions.

[5] Mr. Sabar Bakal is also charged with breaching an undertaking by failing to keep the peace. It is conceded by his counsel that Mr. Bakal was subject to the relevant undertaking, carrying that condition, at the time of the alleged offence.

[6] I am not responsible, in this hearing, for deciding whether the Crown has proved beyond a reasonable doubt that this attack occurred as alleged, or that these men participated in it. Nor am I required to resolve any of the charges I have described. This is a preliminary inquiry, and the sole issue before me is whether there is sufficient evidence to justify forcing each of the men to even stand trial on the charges laid. In technical terms, has the Crown established a prima facie case, requiring that these men be committed to stand trial on each of the charges laid?

II. The Prima Facie Case Standard

a. The Standard Explained

[7] The prima facie case standard that has been adapted to govern committal decisions in preliminary inquiries was described in United States v. Shephard, [1977] 2 S.C.R. 1067. The Shephard test holds that:

"[W]hether the evidence is sufficient … 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 … is … required to commit an accused person for trial in any case in which there is admissible evidence which could, if believed, result in a conviction."

Given that the law identifies crimes by specifying the factual conditions or "elements" that must coincide for an offence to occur, the application of this standard requires that I determine whether there is a prima facie case on each of the elements of each alleged offence.

[8] As will be seen, this test requires a distinction to be drawn during evaluation between "direct evidence" and "circumstantial evidence." Direct evidence is "evidence which if believed resolves a matter in issue." For example, the testimony of Ms. Samantha Daoust that she saw Mr. Bakal making a stabbing motion towards the victim, while the victim was in the backyard, is direct evidence that Mr. Bakal was part of the group surrounding the victim and that he was making the motion described. In substance Ms. Daoust said that she learned these things directly by seeing them.

[9] By contrast, circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter in issue can be reasonably inferred." Since Ms. Daoust did not claim to see Mr. Bakal holding a knife at the time she claims he made the stabbing motion in Mr. Said's direction, her testimony is, at best, circumstantial evidence consistent with Mr. Bakal stabbing the victim, given that the motion described is consistent with a stabbing. Whether that is a reasonable inference to draw, however, depends on an evaluation of the evidence, as a whole.

[10] Whether applied to direct or circumstantial evidence, this prima facie case standard is not a high one, nor is it meant to be. This is because judges called upon to apply it are not charged with the responsibility of deciding the case. Another body is supposed to decide guilt or innocence in the event of a trial. That decision-making body may be a Superior Court Judge or a jury. The prima facie case test is designed to enable judges to determine the sufficiency of evidence while preventing the judges who apply it from doing the ultimate decision-maker's job of deciding guilt or innocence.

[11] The committal test, typically framed on the assumption that the ultimate trial will be before a jury, therefore requires judges making prima facie case decisions to assume a jury might accept as true any of the evidence that has been presented. That is why the Shephard test requires the prima facie case judge to proceed as "if [the evidence] is believed." I am therefore not to draw my own conclusions about whether the witnesses who testified before me are being truthful or accurate. That will be for the jury to decide if a trial is ordered. I am therefore to assume that the evidence relied upon by the Crown is credible and reliable. For example, I am to assume that direct identifications of suspects made by Det. Dieu pursuant to the decision in R. v. Behre [2012] O.J. No. 5029 (C.A.) are accurate. Concerns relating to the quality of the video used by Det. Dieu to do so or controversies about Det. Dieu's ability to make accurate identifications are trial matters.

[12] In addition to assuming that the evidence before me is true and reliable, I am also to bear in mind that a jury is permitted to believe some, or all, or none of the evidence they hear. In deciding whether there is a prima facie case I am therefore to assume that the jury has chosen to believe the most incriminating evidence the Crown has presented. As the Supreme Court of Canada put it in R. v. Sazant 2004 SCC 77, [2004] 3 S.C.R. 635 at para 16, citing R. v. Arcuri 2001 SCC 54, [2001] 2 S.C.R. 828, "[W]here the Crown has adduced direct evidence on all of the elements of the offence, the preliminary inquiry judge must commit the accused to trial even if the defence proffers exculpatory evidence." Similarly, as will be seen, I am to accept a reasonable, incriminating inference from circumstantial evidence, even if that incriminating inference is not the only reasonable inference that arises from the evidence. Simply put, I am not to choose between competing interests: R. v. Manasseri [2010] O.J. No. 6211 (Ont.C.A.). That is for the ultimate decision-maker to do. As indicated, I am to take the Crown case at its highest.

[13] For this reason, I do not accept the submission made by counsel for Mr. Osman that the oral testimony of witnesses whose prior statements were admitted pursuant to section 540(7) of the Criminal Code, undermines the section 540(7) evidence. Statements admitted pursuant to section 540(7) are evidence in the case. Once admitted, those statements have the same status as oral testimony and must be evaluated according to the foregoing rules. If those statements contain inculpatory evidence by a witness, the Crown is entitled to have that evidence treated as accurate and considered in favour of committal, even where that inculpatory version is contradicted by the in-court oral testimony of the witness.

[14] While all of this is clear, there are two areas where the law is less unequivocal that I must attempt to resolve.

[15] First, there are competing views about how much evidence is required to meet the committal test. Second, there is authority suggesting that, exceptionally, on the issue of identification, the preliminary inquiry judge must pay some attention to the quality of the evidence. I will address each of these issues in turn.

b. When is evidence "sufficient"?

[16] The question of how much evidence is sufficient remains murky, even after forty years, because of ambiguity in the way the Shephard test is articulated. There are decisions that draw on its reference to "any evidence" to hold that so long as there is "any evidence" on each of the elements of an offence, even a "scintilla of evidence," committal must follow: see for example R. v. Martin, [2001] O.J. No. 4158 at para. 3 (Ont.C.A.); R. v. Olubawale [2001] O.J. No. 961 at para. 8 (Ont.C.A.), and R. v. McIlwain [1988] O.J. No. 2022 (Ont.H.C.J.).

[17] The problem with the suggestion that "any" evidence, or a scintilla of evidence suffices is that this characterization of the test disregards the admonition expressed in the Shephard formula that a prima facie case is established if "a reasonable jury properly constructed could return a verdict of guilty." It is obvious that a reasonable jury cannot return a verdict of guilty based on a scintilla of evidence, or even "any evidence." Before it can properly return a verdict of guilty there must be sufficient evidence to enable a reasonable jury to be persuaded of the guilt of the accused beyond a reasonable doubt.

[18] I will give an example. Evidence that the accused walked up to a complainant prior to an altercation starting, is evidence that can be relied upon by the Crown to support an allegation that the accused is the aggressor. It cannot be said, where such evidence exists, that there is not "any" evidence supporting the Crown theory. Still, no reasonable trier of fact could ever infer that the accused is the aggressor in the violence that ensued based solely on the fact that the accused walked up to the complainant. The term "any" evidence is therefore misleading, since "any" evidence is not always sufficient evidence.

[19] For this reason, even if it once was safe to articulate the law as accepting that even a scintilla of evidence will be sufficient for committal, this is no longer so. Justice MacLachlin (as she then was) explained in her concurring judgment in R. v. Charemski, [1998] 1 S.C.R. 679 at 701, that "'sufficient evidence' means sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to 'sufficient evidence' is incomplete since 'sufficient' always relates to the goal or threshold of proof beyond a reasonable doubt." In R. v. Fontaine (2004), 2004 SCC 27, 18 C.R. (6th) 203 at para 53 (S.C.C.), a majority of the Court commented that there is no prima facie case "unless there is evidence in the record upon which a properly instructed jury [could] rationally conclude that the accused is guilty beyond a reasonable doubt." Although it is not always expressed in Ontario Court of Appeal authority, this formula was embraced in R. v. Turner 2012 ONCA 570, [2012] O.J. No. 4088 (Ont.C.A.).

[20] That having been said, the prima facie case test is nonetheless applied in a way that is designed to prevent a judge at a preliminary inquiry from doing the job assigned to the tribunal responsible for rendering a verdict. The proper way to analyze the sufficiency of evidence in a prima facie case inquiry was described, with clarity, in R. v. Arcuri [2001] S.C.R. 828. The approach the law requires depends on whether the offered evidence is "direct" or "circumstantial."

[21] Where there is "direct evidence" confirming an element of the offence, a judge conducting a prima facie case inquiry must treat that direct evidence as sufficient on that element.

[22] By contrast, where evidence is circumstantial on an element of the offence the judge must ask whether that evidence "is reasonably capable of supporting the inferences that the Crown asks the jury to draw": R. v. Arcuri [2001] S.C.R. 828 at para. 23. Put another way, as the preliminary inquiry judge in this case I am to ask whether "if believed, [the evidence] could reasonably support an inference" that the relevant element of the offence existed at the time of the alleged offence: R. v. Arcuri, supra. I am not to decide whether I would draw the inference the Crown requests, if I was the trier of fact: R. v. Hawley 2012 ONCA 528. I am to assume that a jury will choose a reasonably available inculpatory inference. "[W]here more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. A preliminary inquiry judge who fails to respect these constraints acts in excess of his or her jurisdiction": R. v. Sazant, supra at para. 18.

[23] Accordingly, in the case of circumstantial evidence, preliminary inquiry judges must ensure that inferences sought by the Crown reasonably arise from the evidence. An inference that arises from speculation or conjecture is not a reasonable one: U.S.A. v. Huynh (2005), 200 C.C.C. (3d) 305 at 307 (Ont.C.A.). Inferences must be derived from "rational explication" based on evidence, as Justice Ducharme put it in R. v. Alexander [2006] O.J. No. 3173 at para. 29 (S.C.J.). As was explained in Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152 at 169, cited by counsel for Mr. Osman, there can be no inference unless there are objective facts that can ground the inference that is being requested. Nor is it permissible to infer a fact simply because that fact has not been excluded on the evidence. Inferences need to be supported by evidence.

c. The Controversy Relating to Identification Evidence

[24] As indicated, the second area where the law is contentious relates to the way identification evidence is evaluated at a preliminary inquiry. The basic rule, of course, is that a judge conducting a prima facie case inquiry is not to concern themselves with the reliability of the evidence. There is Supreme Court of Canada authority dealing with the issue of identification, however, directing that a judge undertaking a prima facie case analysis should engage in a controlled examination of the quality of the evidence offered.

[25] This issue arose in R. v. Hay 2013 SCC 61, [2013] S.C.J. No. 61. There the accused appealed his conviction, alleging that the trial judge erred by directing the jury that they could convict on the basis of weak identification evidence of a sole witness. During the initial photo line-up the witness indicated she was 80% sure that Mr. Hay was the shooter. At trial she explained that she was being cautious in offering that percentage, and did intend to identify him. A few days after that lineup, however, she called the police to see if she had been correct, and was unable to pick Mr. Hay in a second lineup that employed a photo of Mr. Hay taken at the time of his arrest. A majority of the Supreme Court of Canada agreed that it would have been a jury direction error had the trial judge invited the jury to convict on this evidence alone, but the trial judge had not erred in this way because no such direction was given.

[26] In resolving the Hay appeal Justice Rothstein offered the following obiter comments at para 41:

"Although the duty to assess credibility and weight of an eyewitness' evidence sits with the jury, and, in some circumstances the testimony of one eyewitness will support a conviction, the jury should not be permitted to convict on the basis of eyewitness testimony that could not support an inference of guilt beyond a reasonable doubt. In other words, a jury should not be instructed that it may convict based on eyewitness testimony alone where that testimony, even if believed, would necessarily leave reasonable doubt in the mind of a reasonable juror: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at paras. 21-25; R. v. Reitsma [1998] 1 S.C.R. 760 rev'g (1997) 97 B.C.C.A. 303; R. v. Zurowski, 2004 SCC 72, [2004] 3 S.C.R. 509; United States of America v. Shephard, [1977] 2 S.C.R. 1067, at 1080. Indeed, where the Crown case consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable jury, the trial judge must direct a verdict of acquittal upon a motion for directed verdict (Arcuri, at para 21)."

[27] The prima facie case test used for directed verdict cases such as Hay is the same standard that is used at preliminary inquiries for committal decisions. Just like a preliminary inquiry judge, a trial judge sitting with a jury is to be mindful that they are not the ultimate fact-finder, and they too are to ply their prima facie case power in a way that respects their limited role.

[28] What was said in Hay therefore applies to preliminary inquiry committal decisions. What the majority decision in Hay decision directs is that, in spite of the importance of respecting the relative roles of triers of law and triers of fact, judges exercising prima facie case jurisdiction have a responsibility to protect against wrongful conviction by denying a prima facie case finding where the identification evidence is inadequate to permit a reasonable conviction. In saying so, the majority in R. v. Hay, supra, was no doubt mindful of the special risk of wrongful conviction arising from identification evidence, and the role that judges carry, as triers of law, to guard against this happening.

[29] There are courts, prior to Hay, supra, that sought to prevent wrongful convictions in preliminary inquiry settings by finding that no prima facie case exists where identification evidence exists but is too weak to sustain a conviction. In R. v. Nabakow [1985] O.J. No. 2469 (Ont. Prov. Ct.), for example, a preliminary inquiry judge took the position that would later be expressed in Hay, supra, and held that there is no prima facie case where identification is too weak to sustain a reasonable conviction. In R. v. Herrera [2008] O.J. No. 3040 (Ont.S.C.J.) the same outcome was achieved by treating manifestly troubling direct identification evidence as not really amounting to "any evidence" at all, enabling a discharge under the test in United States v. Shephard, supra. In R. v. Williams [2012] O.J. No. 6002 (Ont.S.C.J.) similar reasoning was applied to weak circumstantial evidence of identification, on the theory that no reasonable inference of guilt can follow from such evidence.

[30] This body of authority is challenging because the Hay passage and the approach taken in these cases is facially inconsistent with the broad language used in the Supreme Court of Canada decision in R. v. Mezzo, [1986] 1 S.C.R. 802. In that case, albeit by bare majority, the Court specifically held that a judge exceeded his jurisdiction by refusing a prima facie case because of the manifest weakness of direct evidence of identification offered by the key witness. The judge's decision to direct an acquittal of Mr. Mezzo was therefore reversed. The jury should have decided whether the case for identification was adequate. In explaining the decision, Justice McIntyre spoke broadly, saying:

It is impossible to disagree with Lord Widgery C.J. [in R. v. Turnbull [1976] 3 All E.R. 549], when he speaks of the danger of error in visual identification. Nobody could disagree with his assertion of the need for a careful and complete direction to the jury with regard to their treatment of such evidence. When, however, he introduces the suggestion that the trial judge should consider the quality of the evidence and, where he finds it wanting, take the case from the jury, he enters more controversial ground and authorizes the trial judge to encroach upon the jury's territory. Such a step blurs or even obliterates the clear line separating the functions of judge and jury. Questions of credibility and weight are peculiarly the province of the jury…. To consider it, the trial judge exceeds his function.

[31] I am therefore in the uncomfortable position of being faced with the more recent obiter Supreme Court of Canada admonition in R. v. Hay, supra, that supports the position that a prima facie case should not be found where identification evidence is of insufficient reliability to sustain a conviction, and the more longstanding admonition in R. v. Mezzo, supra, that to reject a prima facie case finding because of insufficient reliability is a jurisdictional error.

[32] I cannot resolve this apparent conflict on the footing that the comment in R. v. Hay, supra was merely obiter dictum. In R. v. Henry 2005 SCC 76, [2005] S.C.J. No. 76 the Supreme Court of Canada directed that while not all obiter dicta is to be treated with the same authority, instructive obiter dicta should generally be treated as authoritative. The passage in Hay is clearly intended to be instructive. It is therefore my obligation to attempt to reconcile the decisions and to apply the law, as I understand it.

[33] The solution appears to lay in the distinction between direct and circumstantial evidence. The decision in R. v. Mezzo, supra, dealt with direct evidence of identification. The key witness testified that the accused was the perpetrator, both at the preliminary inquiry and the trial. While the binding ratio of this decision is that prima facie case judges are not to consider the quality of direct identification evidence, the decision is therefore obiter dictum as it relates to circumstantial cases of identification.

[34] By contrast, the Hay decision involved circumstantial evidence of identification. The witness did not say that the accused was the shooter. She said that of all of the pictures she had been shown, Mr. Hay most fit the description of the shooter, and she offered a percentage probability of 80%, which she later said was cautious. Even though she said she meant that information to signal an identification of the accused, in order to act on her evidence and convict, a jury would have to infer that the similarity she described – an 80% or better chance it was him - coupled with the other evidence, supported an inference that the accused was indeed the shooter.

[35] It is therefore possible to reconcile the Mezzo decision and the more recent dictum in Hay in a manner that is largely consistent with the approach taken in the current prima facie case authority in evaluating direct and circumstantial evidence. Where there is direct evidence of identification, the prima facie case judge must act on that evidence, without evaluating its quality. Where the identification evidence is only circumstantial, including where a witness offers a tentative opinion about probable identification, the prima facie case judge is to ask whether that circumstantial evidence is sufficient to enable a reasonable trier of fact to draw the inference that, beyond a reasonable doubt, the accused is the offender. If the identification evidence is not sufficient to do so, the court is not to act on that evidence.

d. The Approach to be Taken

[36] In sum, I have to determine whether there is any evidence upon each of the elements of each alleged offence sufficient to enable a reasonable jury, properly instructed, to return a verdict of guilty on that charge beyond a reasonable doubt, bearing in mind that where the Crown is relying upon circumstantial evidence to establish an element of the offence, I am to determine whether the evidence is reasonably capable of supporting the inference that this elements exists. Where the evidence supporting the element of identity is circumstantial, I am required to ask whether the evidence is reasonably capable of supporting an inference that the accused is the offender, beyond a reasonable doubt.

[37] As indicated, this preliminary inquiry engages consideration of the legal elements of several offences. There is no meaningful controversy about what the legal elements of the relevant offences are, with the exception of the mens rea or mental element of the offence of attempted murder. It is therefore convenient to begin by addressing that controversy.

III. The Mens Rea Element of Attempted Murder

[38] Without question, the leading decision in Canada on the mens rea of attempted murder is the decision in R. v. Ancio, [1984] 1 S.C.R. 225. There, a majority of the Supreme Court of Canada directed that "the mens rea for the offence of attempted murder is the specific intent to kill." In simple terms, this direction has been interpreted in Canadian law to mean that to be guilty of the offence of attempted murder the accused must mean for the victim to die.

[39] In a sophisticated and impressive argument Mr. Cavanagh, for the Crown, submitted that this interpretation of R. v. Ancio, supra, is not correct, and that recent developments confirm this. He began by identifying the long-recognized paradox that this interpretation produces. A person who successfully takes the life of another can be convicted of murder and subjected to the minimum life sentence that offence carries, even if they do not mean for the victim to die. It is enough if the accused "means to cause bodily harm that he knows is likely to cause … death [to the victim] and is reckless whether death ensues or not": s. 229 (a) (ii) of the Criminal Code. Yet the conventional interpretation of R. v. Ancio, supra, holds that an attempted murder conviction can be founded only on a full intention to kill. On this reading the party who succeeds in causing death can be convicted of murder and given a life sentence, with a mens rea that is inadequate to support a conviction of attempted murder for those who fail to kill.

[40] Mr. Cavanagh urges that this makes no sense, particularly in light of the fact that section 24 of the Criminal Code, the general provision defining "attempt" offences, incriminates "Everyone … having an intent to commit an offence…." It is not restricted to those who have the intent to commit the consequence an offence prohibits. Since the offence of murder can be committed by inflicting bodily harm that the offender knows is likely to cause death where the offender is reckless as to whether death ensues, a person who intends to inflict bodily harm and who is reckless as to whether death ensues has the intention "to commit [that] offence." He argues that the prevailing interpretation of R. v. Ancio, supra, cannot co-exist with section 24.

[41] Mr. Cavanagh seeks to bring "coherence" to the law by liberating me from the binding authority of R. v. Ancio, supra, by urging first, that Ancio has long been misread. He urges that, understood in context given the issue before the court, all Ancio intended to do was to make clear that the offence of attempted murder cannot be based on the kind of objective fault that the now defunct "constructive murder" provisions in section 230 of the Criminal Code allowed at the time Ancio was decided. Under the section 230 provisions, a person could be convicted of murder even if they did not intend to cause death to a human being, or intend to cause bodily harm that they know is likely to cause death. The Crown urges that all Justice McIntyre meant to suggest was that while constructive murder could be committed based on objective fault, the offence of attempted murder could not.

[42] In support of that position the Crown points out that in R. v. Lajoie (1973), 20 C.R.N.S. 360, only ten years before R. v. Ancio, supra, the Supreme Court of Canada held that a conviction of attempted murder could occur, even in the absence of a full intention to kill, where the person intended to cause bodily harm that they know is likely to cause death, and where they are reckless about whether death ensues. He also relied primarily upon the post-Ancio decision of R. v. Nygard, [1989] 2 S.C.R. 1074 at para 32, where Justice Cory, for the majority of the Court, equated the moral fault between someone who fully intends to kill, and another who intends to cause "terrible bodily harm" they know will likely cause death. Since "the variation in the degree of culpability [between these two offenders] is too slight to take into account," a party who plans and deliberates to cause such terrible bodily harm to another that they know that death will likely ensue can be convicted of first degree murder. Mr. Cavanagh argues that the recognition of the comparable levels of moral fault between the two mental states for murder in R. v. Nygard, supra, undercuts the sharp divide presumed in the Ancio decision.

[43] In summary, Mr. Cavanagh urges that I recognize that R. v. Ancio, supra, did not intend to change the law in Lajoie, supra, and that I interpret it consistently with section 24 and in light of Nygard, supra, to enable an attempted murder committal to be based on a section 229(1)(a) (ii) intention.

[44] In my view, even if I agreed with Mr. Cavanagh, I am prevented from taking up this invitation by the principles of stare decisis. The Ontario Court of Appeal has interpreted R. v. Ancio, supra, as precluding an attempted murder conviction based upon section 229(1) (a) (ii) intention: R. v. Latoski; R. v. Gordon 2009 ONCA 170. I cannot avoid those binding precedents and the obiter dicta supporting the prevailing interpretation of Ancio in R. v. Droste, [1984] 1 S.C.R. 208, and R. v. Logan, [1990] 2 S.C.R. 731, without the temerity of declaring these decisions to be so manifestly wrong as to be perverse, and therefore not binding on me. I am not persuaded that they are perverse. Indeed, in my view, they identify the law in a principled and technically sound fashion.

[45] First, I do not believe that the decision in R. v. Ancio, supra, can fairly be read as the Crown intends. I do agree that the case dealt directly with an attempt by the Crown to build an attempted murder conviction on a constructive murder intention and not a section 229(1) (a) (ii) intention. It is clear, however, that Justice McIntyre intended to address the mens rea of attempted murder more generally, by exploring the principles that animate all attempted murder cases. Indeed, he meant to signal the end of the Lajoie, supra, approach in Canadian law. Lajoie was not a decision that was overlooked.

[46] Indeed, Justice Ritchie dissented in R. v. Ancio, supra, because of R. v. Lajoie, supra. Justice McIntrye referred to the case, in depth, and while he exhibited the characteristic restraint of the era by not openly proclaiming a prior Supreme Court of Canada decision to have been wrongly decided, he spoke of competing views and clearly adopted the line of authority that was inconsistent with Lajoie. Attempted murder requires the full mens rea of intent to kill.

[47] Second, in R. v. Ancio, supra, Justice McIntyre explained why it is inappropriate to build an attempted murder conviction on the legal definitions of murder contained in the Criminal Code, and he did so in a way that is inconsistent with the Crown's submission that section 24 supports a conviction of murder based on section 229(1) (a) (ii) intention. He said:

"A great deal of the confusion surrounding the nature of the intent requirement to found a conviction of murder may well stem from the assumption that murder and attempted murder are related offences which must share the same mental elements. A brief review of the historical development of the law relating to the two offences demonstrates that the crime of attempt developed as a separate and distinct offence from the offence of murder."

He was making it clear that it is an error to assume that there should be symmetry between the mens rea of the offences of murder and attempted murder, notwithstanding section 24, which must be interpreted in light of the long-standing common law of attempts.

[48] That long-standing common law of attempts holds that the justification for holding offenders guilty of attempting to commit a crime that they do not succeed in committing differs from the justification for holding offenders guilty of successfully completing an offence. Those who have completed the offence cause the prohibited harm and can be held responsible for having caused that harm with a culpable mental state. Those who have not successfully caused the prohibited harm cannot be held responsible on the basis of the harm they have caused. They are held responsible primarily for their culpable mental state, coupled with the actions they took in furtherance of that mental state. Since guilt rests predominantly on the state of mind of the offender in an attempt case, only the highest culpable state of mind known to law will suffice, namely full intention: see Eugene Meehan, The Law of Criminal Attempt, (Carswell Legal Publications: Calgary, 1984) at 35-49. The requirement that the accused who intends the crime must engage in some act of perpetration beyond preparation serves the multiple purposes of providing a dependable foundation for confirming that the full intention exists, ensuring that the law does not criminalize mere intention alone, and requiring the offender to demonstrate that they truly are dangerous enough to punish. That is the common law foundation for attempt liability.

[49] As a result, at the time R. v. Ancio, supra was decided it was universally the case across the Commonwealth that an attempted murder conviction could not be based on anything less than an unadorned intention to kill another human being. In R. v. Whybrow (1951), 35 Cr. App. R. 141 at 147 (C.A.), Lord Goddard C.J. addressed precisely the same issue as the one now before me. He said of the fact that a murder conviction can occur without a complete intent to kill but an attempted murder conviction cannot:

"It is not really illogical because, in that particular case, the intent is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought, which is supplied in law by proving intent to do grievous bodily harm"

[50] There is no question that at the time Justice McIntyre offered similar reasoning in R. v. Ancio, supra, that he was aware that the law expressed in Lajoie, supra, was out of step with both the jurisprudential theory of attempt liability and with authority throughout the Commonwealth. He manifestly intended to retreat from the Lajoie decision to bring it into line, if not with symmetry, with the logic of the law.

[51] Nor can the Nygard decision be fairly interpreted as signaling a change in the law of attempted murder. Nygard, supra of course, is not a constructive murder case. It is a case dealing directly with section 229(1)(a)(ii) murder. By taking the time to address and distinguish the reasoning in R. v. Ancio, supra in Nygard, supra at para 19-23, Justice Cory was clearly acknowledging that the principle in Ancio is not confined to constructive murder.

[52] More importantly, in R. v. Nygard, supra, Justice Cory does not disapprove of the decision in R. v. Ancio, supra, to confine attempted murder convictions to cases where there is a full intention to kill. Instead, he defends that outcome for the reasons offered here, by affirming, at para 21, that "the crime of attempted murder … is historically and conceptually distinct from that of murder."

[53] In spite of the able argument presented by Mr. Cavanagh I am therefore proceeding in this case on the basis that a committal for the offence of "attempted murder" requires sufficient evidence that the accused persons intended Mr. Said to die.

IV. The Admissibility of Statements Attributed to Jessica Walker: the "Res Gestae" Arguments

[54] A preliminary inquiry judge can act only on evidence that is admissible according to law. The evidentiary record that I am to act on is largely settled, including by an expansive section 540(7) order that I made early in the proceedings. The only remaining evidentiary issue relates to statements attributed to Jessica Walker by Samantha Daoust.

[55] Samantha Daoust testified that Ms. Walker said a number of things. The only comments attributed by Ms. Daoust to Ms. Walker that the Crown seeks to have admitted are comments Ms. Daoust claims were made by Ms. Walker when Ms. Walker came upstairs, where Samantha Daoust, Mark Suidical and Jason Klein had taken refuge. Specifically, according to Samantha Daoust, Jessica Walker said, (1) "they were stabbing some guy," (2) "they were pretty much killing him" or that "he's pretty much dead," (3) they were using [Jessica Walker's] kitchen knife to do the stabbing, and (4) that she [Jessica Walker] was going to puke.

[56] These statements are hearsay statements because they are being offered by the Crown as proof of the things that Jessica Walker claims in those statements. These hearsay statements are therefore prima facie inadmissible. The Crown seeks to have them admitted as part of the evidentiary record before me pursuant to the res gestae hearsay exception relating to spontaneous statements. That exception, as recognized in Canadian law, was captured comprehensively and accurately in R. v. Khan [1988]., 42 C.C.C. (3d) 197 (Ont.C.A.), even though the Ontario Court of Appeal decision to admit statements under the spontaneous exclamation exception was overturned in R. v. Khan, [1990] 2 S.C.R. 531. In correctly reciting the legal standard Justice Robins said for the Ontario Court of Appeal, at 207:

"…a spontaneous statement made under the stress or pressure of a dramatic event or startling act or event and relating to such an occasion or event may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received."

[57] The Crown, of course, has the burden of establishing admissibility by demonstrating that the factual foundation for a hearsay exception is met on the balance of probabilities. The challenge is that Ms. Daoust gave inconsistent evidence about when these conversations occurred. In her evidence in chief she said that these comments were made while the attack was ongoing. When cross-examined she said she was not really sure when Ms. Walker said these things, and then offered that they were said when Ms. Walker came upstairs after the men left and the victim was gone, perhaps a half an hour after Ms. Daoust observed an attack in the backyard.

[58] In spite of Ms. Daoust's insecurity about when the comments were made, I am satisfied that they were probably uttered while the events were ongoing. I say this because the statements attributed to Ms. Walker by Ms. Daoust describe an ongoing event. I am therefore satisfied that the statements were made contemporaneously with the attack.

[59] I am also satisfied that they were made while Ms. Walker was emotionally engaged in the events that were transpiring. There is evidence before me that, during the events, loud sounds consistent with a struggle were occurring, and the sounds of pained, labored breathing could be heard. The event transpiring downstairs was shocking. Ms. Daoust described Ms. Walker, at the time Ms. Walker made these comments, as crying, and breathing into a pillow. Ms. Walker's comment that she was "going to puke," is admissible hearsay in its own right as a "statement of present physical condition." This is so as Mr. Walker was describing her nausea, as she was experiencing it. This statement, too, confirms that when she made the balance of the statements described above, Ms. Walker was in a state of emotional intensity and engagement.

[60] Finally, I am persuaded that the statements were spontaneous. While it is true Ms. Walker was reporting or narrating what was happening, she did so in the throes of the event to persons who were also engaged in the event and were taking refuge upstairs at the time. She was not simply telling someone about an event that had ended; she was reporting to her listeners, who had a stake in what was going on and feared what was happening, what was occurring downstairs.

[61] In all of the circumstances, I find the statements attributed by Ms. Daoust to Ms. Walker and described above to be admissible pursuant to the spontaneous exclamation exception.

V. The Key Evidence Recounted

[62] During the preliminary inquiry impressive headway was made by defence counsel in securing qualifications on both the narrative being relied upon by the Crown, and the reliability of the evidence. I am required by law to disregard this, and take the admissible Crown evidence at its highest. I will therefore not be including, in this recital, reference to challenges to the credibility or reliability of Crown witnesses, including recanted evidence, even if raised in the written arguments submitted by the accused men.

[63] I have more than one narrative of what happened from each of the key witnesses to the events surrounding the attack at Ms. Walker's house, because I admitted into evidence under section 540(7) of the Criminal Code recorded interviews provided by each of those witnesses, and those witnesses were then called to testify. I have chosen not to list the evidence from each witness serially, but to integrate their accounts chronologically so that I can better assess the sufficiency of the Crown evidence on each material point.

[64] In the case of Jessica Walker, I have four recorded statements and testimony offered on two occasions during the preliminary inquiry. While there are some discrepancies in the testimony of all of the witnesses, there are material differences between the versions she offered. When I make reference in these reasons to Ms. Walker's conflicting evidence on key points this is not done to raise questions about her credibility or reliability. I am doing so to ensure that all of Ms. Walker's material claims supportive of the Crown case are included here, so that the Crown case can be taken at its highest.

[65] I will begin my review of the evidence by evaluating its sufficiency in supporting the Crown's theories relating to the motive for the attack, and whether Mr. Said was lured to Ms. Walker's home to facilitate that attack. I will then describe the key evidence relating to the attack before evaluating the sufficiency of the case presented by the Crown on each of the charges.

a. Motive

[66] The evidence before me is that on November 16, 2013, Ramadan Osman, brother of the accused, Isaack Osman, was abducted and assaulted, including by being repeatedly cut on numerous locations about his body and legs. He managed to escape and was taken to the hospital by a passerby.

[67] The next day, November 17, 2013, Mr. Said was discovered at Andrew Hayden Park, naked and critically injured. He too, had been assaulted by being repeatedly cut about his legs.

[68] There is evidence that this attack occurred at Jessica Walker's Penny Drive townhome residence. Specifically, there is the evidence from Ms. Walker, Ms. Daoust, Mr. Suidical and Mr. Klein that a man, identifiable as Afdal Said, had been assaulted in the residence between approximately 3:30 and 5:30 in the morning. There is also evidence of the presence of Mr. Said's DNA in Ms. Walker's kitchen, taken from blood spatters that had survived an evident cleaning of the townhouse by Ms. Walker.

[69] As indicated, the Crown theory is that the attack on Mr. Said was in retaliation for the attack on Isaack Osman. In my viewm there is evidence supporting that inference.

[70] First, there is evidence supporting the contention that all of the men known to have been present at Ms. Walker's home are associates of Ramadan Osman. The evidence of association includes the testimony of various police officers linking all of the accused persons together in random clusters on prior occasions.

[71] That police evidence associates Ramadan Osman and Makador Ali on November 10, 2011, and Ramadan Osman and Fabrice Batubenga on May 27, 2012. The Crown theory is that these three men arrived together at the scene of the attack on the morning in question.

[72] The police evidence also links Mr. Bakal and Mr. Belance, on January 11, 2013, as well as Mr. Belance and Mr. Batubenga at Ms. Walker's residence on July 26, 2013. Mr. Bakal, Mr. Belance, and Mr. Saad Farah were in the same group of men on September 15, 2013. While these particular associations do not directly include Ramadan Osman or Makador Ali, Mr. Batubenga provides a common link between the two groups of men.

[73] More importantly, there is evidence before me that, approaching midnight on November 16, 2013 into the early morning hours of November 17, 2013, shortly before the attack, Mr. Bakal, Mr. Belance, Mr. Farah, Mr. Shakib Egeh and Mr. Ramadan Osman were at the Time Out Bar and Grill.

[74] There is also evidence permitting a reasonable inference that the attack on Mr Said was in retaliation for the attack on Isaack Osman, including the testimony of Said Ishmael, a man married to Hodan Osman, the sister of Ramadan and Isaack Osman.

[75] Mr. Ishmael testified that in the late morning hours of November 16, 2013, he was at his wife's parents' home where Isaack Osman lives, when Isaack Osman returned from the hospital, badly injured. Mr. Ishmael testified that he discussed what had occurred with Isaack Osman. Mr. Ishmael said Isaack Osman reported that a man named "Afdal" was involved in the attack that injured him. Mr. Ishmael testified that Isaack Osman told him that Afdal had cut his face with a knife while two others held him, and that Afdal and a white man chased him after he escaped. This evidence shows that Isaack Osman did not try to make a secret of what happened to him, or who was responsible. Moreover, Mr. Ishmael did not agree with the suggestion that Afdal is a common name in the Somalian community.

[76] Although there is no direct evidence that Mr. Ramadan Osman was present to receive this information, there was testimony from Hodan Osman, Ramadan Osman's sister, that Ramadan Osman lives in the same home as his brother. There is also evidence, rehearsed above, disclosing that Ramadan Osman was in Ottawa later that day, and indeed, was present at the scene of the attack on Mr. Said, evidence I will describe below. A reasonable jury could fairly reason that the attack on Isaack Osman would have been a notorious event in the Osman family, making it highly probable that Ramadan Osman, who lived in the house where Isaack Osman returned, would have learned about what Isaack Osman was alleging.

[77] Given that there is evidence capable of supporting the inference that Ramadan Osman would have been aware of the attack on his brother and its likely circumstances, it is also reasonable to infer that he or someone else shared this shocking and disturbing information with Mr. Osman's associates who he was at the bar with, within hours of the attack on his brother. This likelihood is supported by the evidence showing that a few hours later at least some of the men were involved in a sustained attack on Afdal Said that was disturbingly similar to the attack the night before on Isaack Osman.

[78] In sum, on this record, given the timing, context and connections between the attack on Ramadan Osman's brother and the attack on Mr. Afdal Said, a reasonable inference can be made that the attack on Mr. Said was in retaliation for the attack on Mr. Isaack Osman.

b. The Theory that Afdal Said was lured to Ms. Walker's residence

[79] The Crown contends that in order to carry out the vengeance attack, Afdal Said was lured to Ms. Walker's residence. This theory is based on the testimony of Ms. Walker that the person ultimately attacked, now known to have been Mr. Said, was someone she had never seen before in her life. Ms. Walker said that he suddenly arrived unexpectedly at her home in the early morning hours of April 17, 2013, and walked in the door, where the associates of Mr. Ramadan Osman were located, enabling the attack to occur. The only reasonable inference on this evidence, says the Crown, is that Mr. Said must have been lured there as the result of a conspiracy by the men who had met earlier at the Time Out Bar and Grill.

[80] Without question, the notion that Mr. Said was lured to the house is intuitively attractive. It is not, however, an inference that finds support in evidence. It is, in my view, nothing more than an educated guess, too speculative to support a reasonable, evidentiary-based inference.

[81] First, although there is evidence that, prior to that attack, a number of the men implicated in events had been together at the Time Out Bar and Grill, there is no evidence of any discussion between the men about luring Mr. Said to Ms. Walker's. It is one thing to infer that the men must have talked about what had happened to Isaack Osman. It is quite another to infer that the men conspired to lure Afdal Said to Ms. Walker's house a few hours later, and took steps to do so.

[82] Moreover, the only evidence presented about Mr. Said's reason for arrival is inconsistent with an allurement theory. Specifically, Jessica Walker said, in her statement of November 17, 2013, that Mr. Said was looking for Ms. Walker's incarcerated boyfriend, and told her when he arrived that he needed somewhere to go having just "juked" or stabbed two people at the Food Frenz corner store. Ms. Daoust gives much the same account, and it finds support in the evidence offered by Mr. Klein. This account is not reasonably consistent with allurement, since it discloses that Mr. Said arrived at Ms. Walkers for reasons of his own.

[83] There is therefore no evidence upon which a reasonable jury could infer that Mr. Said had been lured to Ms. Walker's residence to facilitate the attack that occurred. Such an inference could be taken only unreasonably, in the face of contrary evidence.

c. Key Evidence Narrating the Attack and its Aftermath

[84] There is evidence that when Mr. Said arrived at Ms. Walker's house in the early morning hours of November 17, 2013, there were a number of people present. On the evidence, Mr. Said arrived approximately a half hour or so after Ms. Walker had returned from Dooley's bar with her long-time friend Samantha Daoust, and two white males who were Ms. Daoust's friends, Jason Klein and Mark Suidical. The evidence is that these people arrived at Ms. Walkers around 3:00 a.m. or 3:30 a.m., and were present when Mr. Said entered the Penny Drive Townhouse.

[85] Ms. Walker said in her November 17, 2013 statement that, in addition to these people, two of her neighbourhood friends, Saber Bakal, a.k.a, "Suwoo," and James Belance, a.k.a. "Gino," were in her residence before Mr. Said arrived. She later identified both men, long known to her, from photographic lineups. In her November 20, 2013 statement Ms. Walker added that a man introduced to her earlier in the evening as "Big Man" was with Gino and Suwoo when they arrived. He came into the house with them.

[86] In her statements, Ms. Daoust also identified Mr. Bakal, who she referred to as "Saeed," and Mr. Balance, who she referred to as "Gino." She said that these men were at Ms. Walker's before she and Ms. Walker left for Dooley's Pub, along with a man she referred to as "the Giant." She also said that another man was present before the group went to Dooley's Pub, who she later identified as Shakhib Eghe. She said that when she and her friends returned from Dooley's Pub, Gino, Saeed and the Giant were there, before Mr. Said arrived.

[87] Mr. Suidical testified that four black men arrived by car after he and the Dooley's group arrived at Ms. Walker's. He also referred in his statement of November 17, 2013 to "five or six guys," including a Middle Eastern or East Indian man, a man with a first name Ali, and a man named Jamal.

[88] In his statement of November 20, 2013, Mr. Klein said there were one or two black men present when they arrived back. He estimated that when all of the men he saw showed up there were five or six men.

[89] Ms. Daoust said that after Mr. Said arrived, he was initially alone in the kitchen with Ms. Walker for a time. She said of Mr. Belance and Mr. Bakal that they came into the kitchen from inside the house, and other men, who were out back – perhaps four or five - knocked on the back door.

[90] Ms. Walker also said there were other men out back. She said that at one point she could see through the open back door at least ten men hanging out near a green box that is outback. She testified elsewhere that this is a common meeting place for neighbourhood men.

[91] In her November 17, 2013 statement Ms. Walker described how, shortly after Mr. Said arrived, Mr. Bakal and Mr. Belance took Mr. Said outside, into the backyard. She said she told them not to do anything stupid. She said the men were yelling at each other. Ms. Walker also said that men came from the green box, and she saw them standing with Mr. Bakal and Mr. Belance. She said she told her friends from Dooley's to go and remain upstairs and keep the light off.

[92] Ms. Daoust said in her November 17, 2013 interview that a group of men "came up to the door inside" and took Mr. Said into the backyard. In her testimony she said that Mr. Bakal and Mr. Belance "talked to him pretty much trying to get him into the backyard," and that they were "pulling him into the backyard," or "forcing him into the backyard." She said in her testimony that "everything happened there."

[93] Mr. Klein said that a couple of seconds after the man now known to be Mr. Said arrived, more people started coming into the house, bringing the total to five or six men, and the "drama started," with the men going outside. He said all of the black men went outside, but then said "from what I know if one stayed in I didn't know."

[94] Mr. Suidical said he did not see the men go out back, as he was in the living room at the time. He said that while initially things were peaceful after the group arrived back from Dooley's, about 40 minutes later they got rowdy in the kitchen, and there was a "whole bunch of commotion."

[95] Mr. Klein testified that he could hear muffled voices talking loudly when the men were in the backyard, and that he looked out the window on the kitchen door briefly, seeing the men in a circle in an intense argument or conversation. Shortly after, he was sent upstairs with Ms. Daoust and Mr. Suidical.

[96] Ms. Daoust said, in her statement of November 17, 2013, that when the men were in the backyard she could see that they were fighting. There was "one guy in the middle and there was maybe four or five guys around him." She later described the men as "surrounding" him. She said she saw motions to the victim's stomach. Ms. Daoust said she could see Mr. Bakal and Mr. Belance in the circle, and that she could see Mr. Bakal making stabbing motions towards the victim's stomach, although she could not see whether he was holding a weapon. She essentially repeated this account in her testimony, where she added that Mr. Belance was "mainly just crowding" Mr. Said.

[97] Ms. Daoust said of the men in the back, "some of them kept coming in and out panicking and we just heard swearing and yelling." She also said in her November 17, 2013 statement, that she saw Mr. Bakal and Mr. Belance "dragging" the victim, "trying to pull him in 'cause he was fighting to stay out," and that "there was a couple of other guys that I don't know."

[98] She said that Ms. Walker told her and her friends to go upstairs so that they would not see anything or be witnesses. She and Mr. Suidical and Mr. Klein did so, taking refuge in Ms. Walker's son's room.

[99] In her statement of November 20, 2013, Ms. Walker said that when Mr. Said was initially taken outside, a man she referred to as "Jinna's brother," and she would later identify as Shakib Egeh, was outside. While he had been at the house before Ms. Walker left for Dooley's with her friends, Mr. Egeh did not come into the house after their return. She said that while she saw him in the backyard "…he left like before anything happened."

[100] Ms. Daoust said in her November 13, 2013 statement she too saw a person she identified as Mr. Egeh in the backyard. She did not describe how long she observed him but said it was at a "point [when] everyone was just yelling around and watching or beating." She said that Mr. Egeh was in the circle. She did not say specifically whether Mr. Egeh was yelling, watching or beating, and she did not see him come back into the house.

[101] Ms. Walker said that after "five minutes" of Mr. Belance and Mr. Bakal having taken the victim outside, the victim was brought back inside because there were cops in the neighbourhood. At another point she said she could hear that the man had been brought back inside, perhaps 10 – 20 minutes after he was taken outside.

[102] Mr. Suidical gave a similar 10 - 20 minute estimate, and indicated in his statement that at some point one of the men came back into the house saying the cops were outside, and it was at that time that Ms. Walker sent the Dooley's friends upstairs.

[103] In her November 17, 2013 interview, Ms. Walker described being upstairs when she heard that the men were back inside. She said she came down and saw the victim on the floor, surrounded by several men. She claimed that while upstairs, she could hear the "smashing of his face." "You could hear stomping" and could hear fighting and furniture moving. At some point she could hear moaning coming from the victim. Ms. Walker said that when she did come down she could see the person on the floor.

[104] During her interview of November 20, 2013 Ms. Walker's evidence also suggests that she had gone upstairs after the victim was brought outside. She was there when Mr. Said was brought inside. She could hear the back door closing and opening, and heard "Juke him. Juke him," which she understands to be a reference to stabbing. At this point she went down into the kitchen and discovered "them all" there," with the exception of "Big Man" who was sitting in the living room. The victim was lying on the ground in the kitchen in the middle of the men and they were all yelling.

[105] In both her November 17, 2013 statement, and her November 20, 2013 account, Ms. Walker described her reaction upon seeing Mr. Said on the floor. In her November 17, 2013 statement she said his feet were still moving and she said started "freaking out," asking them what they were doing. She said she went crazy, and "I told them to get the fuck out of my house. I told them I was gonna call the police." A guy with braided hair she never identified told her to go back upstairs and keep her mouth shut.

[106] Ms. Walker's November 17, 2013 statement leaves the impression that she did go back upstairs, and therefore was not present to see the violence against Mr. Said. In her November 20, 2013 interview, however, Ms. Walker described being downstairs for at least part of the violence. She said that she did not want to leave because she didn't want to come back to a dead body in her house. She said she was yelling at the men, and would not let the men into the living room, but that at one point the victim got off the ground and started running, making it into the living room. At some point, Ms. Walker said that she had checked his pulse.

[107] Ms. Daoust said, both in her statement and her testimony, that from upstairs she could hear fighting, and she inferred that the victim was dying because of his breathing and the noises of struggle that could be heard, including banging, tables falling, glass breaking, and screaming and yelling. Most significantly, she said that she could hear someone imploring the victim to "die die" and "why don't you just die already."

[108] In his statement of November 17, 2013, and in his testimony, Mr. Suidical spoke of it sounding like a fight was going on after the men returned inside the house, including yelling and screaming. He said it sounded like a brawl for about 10-15 minutes, followed by silence. For the next 40 minutes or so he could hear the sound of punching or blows against a face. He heard this sound periodically when it seemed the victim cried out after things had gone silent for a time.

[109] Mr. Klein said in his November 20, 2013 statement that, from upstairs, he heard the man being brought back inside and a fight occurring, lasting a half an hour or so, or an hour and a bit. He said he heard banging, like a guy was getting hurt, and he testified to hearing a table being moved, grunting and aggressive voices.

[110] Ms. Daoust described a man she later identified as Mr. Bakal coming upstairs and telling her, Mr. Suidical and Mr. Klein, "You didn't see anything. Don't say anything, bro, okay, we're good."

[111] There is confirmatory evidence of the attack that occurred downstairs, not only in the DNA evidence obtained from blood spatters, but in the res gestae statements made by Ms. Walker, described above. As indicated, there is evidence that Jessica Walker said in admissible hearsay statements made while men were downstairs, (1) "they were stabbing some guy," (2) "they were pretty much killing him" or that "he's pretty much dead" and (3) they were using [Jessica Walker's] kitchen knife to do the stabbing.

[112] Ms. Walker offered evidence about other black men being in the house during the attack that occurred after Mr. Said was brought back inside the house, apart from Mr. Bakal, Mr. Belance and "Big Man." In her November 17, 2013 statement she said that when she came downstairs there were maybe six persons present.

[113] In her November 20, 2013 statement Ms. Walker said there were three other, short-haired men around 25 to 28 years of age she did not know. She believed they were Haitian and that they came with "Frenchie." She never identified any of these men.

[114] Ms. Walker also said in her November 20, 2013 statement that about an hour after the victim was brought back into the house, "Frenchie," "Lucky" and "Holiday" arrived.

[115] The Crown contends that on November 27, 2013, Ms. Walker offered information identifying Fabrice Batubenga, as "Frenchie," Makador Ali, as "Lucky," and Ramadan Osman, as "Holiday." With respect to Mr. Makador Ali and Mr. Ramadan Osman, counsel have raised issues as to whether this information constitutes sufficient identification evidence, or identification evidence at all, a point I will return to below.

[116] In her November 20, 2013 statement, Ms. Walker described the circumstances surrounding the arrival of Frenchie, Lucky and Holiday, evidence suggesting that these men did not arrive until late in the events.

[117] Specifically, she said that before these men arrived, Mr. Bakal was trying to "get rid of the body." He did not have a car and so "they" asked Big Man to use his father's car, which was on site in the parking lot. She said Big Man would not let them. She explained that as a result, Mr. Bakal got on the phone and called one number that was not working before panicking and calling a bunch of people. Included among the people who came in response were Frenchie, Holiday and Lucky. She said in her November 17, 2013 statement that "more and more people came, she estimated 15, in three cars, and it got "louder and louder."

[118] In her November 20, 2013 statement, Ms. Walker said that Frenchie, Holiday and Lucky did not take the body, as had been requested. "They just lost it in my kitchen, yelling, arguing not knowing what the hell to do." She initially said that these three men then left, but then offered a correction, saying she was pretty sure that they "took the body outside at one point," but brought it back in. She said Frenchie, Holiday and Lucky left without the body.

[119] Ms. Walker said in that statement that ultimately Big Man turned the keys over to Mr. Bakal, who ended up taking the vehicle away. She believed the vehicle was a silver Honda four-door hatchback.

[120] Ms. Walker said that at some point she had conversations with Mr. Belance and Mr. Bakal in which each of them told her that if it comes down to the police coming, to say it was them.

[121] There is evidence that shortly after all or the bulk of the men left – it is not clear that they all did - Ms. Walker cleaned blood from a number of locations in the townhouse and restored the townhouse, including the furniture and items that had been knocked over. Mr. Klein estimated that this occurred around 4:30 a.m.

[122] The evidence before me indicates that Mr. Said was found a few hours later in Andrew Hayden Park by "joggers" and "dog walkers" around 9:30 a.m. As indicated, he was naked, under a tree, partially covered in leaves. The temperature outside was six degrees Celsius. He was shivering and obviously injured. He had extensive contusions to his face, consistent with a brutal beating. He was cut on his elbow, and had a series of significant systematic cuts to the inside of his legs, that, despite their depth, had stopped bleeding.

[123] When paramedics arrived, they determined that Mr. Said's blood pressure was low. He was taken by ambulance to hospital, where he was later diagnosed with a broken jaw, and brain trauma that left Mr. Said with a significant acquired brain injury.

[124] There is evidence from Ms. Walker that Mr. Belance and Big Man were at Ms. Walker's house when Mr. Bakal returned before 9:30 a.m. Mr. Bakal had new shoes for Mr. Belance. Mr. Bakal then left at 9:30 a.m. to go home to bed. There is evidence that Mr. Belance went into the basement, and Big Man went to sleep on the couch. These men remained throughout the day, and there is evidence that Big Man was checking out the window to watch out for the arrival of the police.

[125] Ms. Daoust gave a statement to the police in the afternoon of November 17, 2013. Shortly after, Mr. Belance was arrested at Ms. Walker's home.

[126] Ms. Walker gave a statement that just before the police had arrived Big Man cleaned his father's car. She said she did not see the car but knew it to have been in the parking lot. She said that she showed Big Man where the cleaning supplies were kept. Those supplies consisted of a spray bottle, bleach and paper towels. She said he took the supplies he had been shown.

VI. Analysis and Conclusions

[127] As indicated, all of the men face allegations on the main charges, including attempted murder, aggravated assault, unlawful confinement, and being unlawfully in a dwelling house. The exception is Mr. Farah, who is not charged with aggravated assault. In addition, some of the men face other charges particular to them. It is helpful to begin by making general observations about the main charges, before examining whether the evidence that pertains to each man is sufficient to warrant committal on the charges they face.

a. The Main Charges

i. Attempted murder and Aggravated Assault

[128] The Crown theory is that Mr. Said was the victim of a joint attack. There is no question that the evidence supports this theory. There is evidence that Mr. Said was forcibly taken outside by at least two men, identified by witnesses as Mr. Belance and Mr. Bakal, and that these men forced him back inside. There is also evidence from Ms. Walker that when the men re-entered the house, she saw a group of men standing around Mr. Said who was lying on the kitchen floor.

[129] The Crown position is that in a joint attack, the blow of one is the blow of all. That is clearly the law, but before an accused person can be linked to an offence based on joint responsibility, there must be some evidence linking that person to the crime, either as a perpetrator or a party.

[130] Even where one of the accused is linked by evidence to the alleged attack that does not end matters for the attempted murder charge. I received extensive argument about whether committal for the offence of attempted murder is even possible on the evidence before me. All of the accused men contest the Crown claim that there is prima facie evidence of an intention to kill Mr. Said.

[131] In my view, despite the able argument presented by defence counsel, there is evidence before me capable of showing that at some point, while the attack inside the home was occurring, the attack was being undertaken to kill Mr. Said. Even if the evidence had not been sufficient while the attack was actively underway, it clearly was when, critically injured, Mr. Said was left exposed at Andrew Hayden Park.

[132] In saying this, I have taken into account all of the circumstances, including the unusual feature that none of the cutting wounds inflicted on Mr. Said were to the vulnerable areas a person intending to cause death would ordinarily target. He was not stabbed or cut in the chest or neck area, or in the front or back of his torso.

[133] I am also mindful that when Mr. Said was abandoned, he was not, as an objective fact, dead. Someone intent on causing his death would have had sufficient control to ensure his death by administering a coup de gras had they so desired but this did not occur.

[134] The context in which the attack occurred nonetheless supports a reasonable inference of attempted murder. There is evidence that, during the attack, Mr. Said was in serious condition, yet the attack persisted. The severity of the attack is evidenced by Ms. Walker's statement that there was blood all over, by her felt-need to check his pulse, and by the evidence of the persons taking refuge upstairs that they could hear laboured breathing and moaning and then periods of silence - consistent with a loss of consciousness - followed by more violence.

[135] It was during an attack of that ferocity that someone was heard to implore Mr. Said to die. Although there is no evidence of who said this, it is obvious that this comment was made by a participant or party to the offence; indeed, the comment itself is clear encouragement of the attack that was underway and would constitute the person who spoke those words a party to the offence, if they had not previously been. This comment, even though uttered by one person, is admissible against all perpetrators and parties. As indicated, this was a joint attack by at least some of those present, and given that this comment was made as a verbal act that formed part of the conduct occurring during that attack, it is a statement made in furtherance of the "conspiracy," admissible against all of those involved. By its nature, the comment is evidence that the attack was being undertaken with the expectation that Mr. Said would succumb to the injuries he was sustaining.

[136] In addition, there is the evidence that when Mr. Bakal was on the telephone calling for help, he was calling for assistance removing "the body." While the need to remove a "body" can be consistent with an unintended death occurring during a beating, in context it can also support an inference that after a sustained attack, Mr. Bakal, a participant in the attack, was satisfied that the purpose of the attack had been accomplished.

[137] In my view, the comments I have recounted, coupled with the significant nature of the head wounds and the deep incisions administered to Mr. Said's legs, makes an inference that the attackers meant to torture and kill Mr. Said reasonably available.

[138] Even had that not been the case, the evidence of Mr. Said's discovery - abandoned after significant blood loss and obvious difficulties maintaining consciousness - on a fall day, in the well of a tree while naked and exposed to the elements, is evidence that comfortably invites an inference that there was an intention that if Mr. Said was not already dead, he should be left to die.

[139] Indeed, although Mr. Said could have ended up covered in leaves from being left in the well of a tree in late fall, it is also open to a reasonable jury to infer that a hurried attempt was made to hide the body.

[140] The primary live issue on committal for the charge of attempted murder for each accused person, therefore, is whether there is evidence that the accused person participated in, or was a party to the joint attack that occurred, at a time when it is reasonable to infer that the intention to kill had arisen.

[141] If an accused person participated or was a party to an assault that occurred before the evidence supports an inference that there was an intention to kill, that accused person can be committed on the charge of aggravated assault, but not attempted murder.

ii. Unlawful Confinement

[142] On the evidence before me, it would also be open to a reasonable jury to find that Mr. Said had been unlawfully confined during the attack. Any suggestion that Mr. Said's confinement was simply inherent in the assault is untenable. The evidence before me is that Mr. Said was overpowered and kept under the control of the attackers for an hour or more. Even leaving this aside, evidence that Mr. Said was taken outside at the outset of the attack, and then brought inside so that the attack could be continued, and that he tried unsuccessfully to flee into the living room, is more than enough to present a prima facie case that the offence of unlawful confinement occurred. On the scenario before me, if there is evidence that would enable a reasonable jury to infer that an accused man participated or aided or abetted in the attack, committal is required not only on the assault-related charge, but also on the charge of unlawful confinement.

iii. Unlawfully in a Dwelling House

[143] The question of whether a prima facie case exists for the offence of "being unlawfully in a dwelling house" is more nuanced. This is so because the offence as alleged specifies that the accused men "entered a dwelling house… with intent to commit an indictable offence." Even though section 349(1) is broad enough to encompass cases where accused persons are already in the dwelling house when they form the intention to commit an indictable offence, the way the charge in Count 4 is particularized requires evidence that the men intended to commit an indictable offence at the time they entered.

[144] Moreover, in order for the offence to have occurred, the "entry" must be "without lawful excuse." There is no offence if someone enters lawfully and subsequently forms the intent to commit an unlawful offence.

[145] With this background in mind, I will examine the evidence relating to each accused person, in turn, to determine whether a prima facie case has been presented on each of the charges they face.

b. Sabar Bakal

[146] Counsel for Mr. Bakal conceded a prima facie case on the charge of aggravated assault. This concession is appropriate. There is direct evidence that Mr. Bakal was a perpetrator of the violence against Mr. Said, including evidence that he was seen taking Mr. Said into the backyard where he was attacked, bringing Mr. Said back into Ms. Walker`s home so the attack could continue, and ultimately participating in the removal of Mr. Said from the home leading to his abandonment at Andrew Hayden Park. Indeed, given what I have said about the prima facie case of attempted murder, Mr. Bakal must be committed to stand trial for that offence in addition to the aggravated assault allegation, as well as the accompanying offence of unlawful confinement.

[147] Analysis of whether there is a prima facie case against Mr. Bakal on the "unlawful entry" charge is not so straight forward. This is because when he initially entered Ms. Walker's home the only available evidence is that he was welcome to be there. Indeed, the evidence is that Mr. Bakal was a frequent guest who was permitted to let himself into the house.

[148] Nothing had apparently changed in that regard when Mr. Bakal brought Mr. Said back into the house. There is no evidence that prior to this Ms. Walker had revoked her invitation. The evidence the Crown relies upon, Ms. Walker's attempt to evict those who were present when she discovered the assault had moved inside, occurred after that entry had already occurred.

[149] In coming to this decision I have considered whether the fact that Mr. Bakal was committing an unlawful act as he entered, made the entry itself unlawful. I do not believe it does. The crime focuses on the lawfulness of the entry itself, not the lawfulness of the actor who is entering. Were it otherwise, anyone entering a dwelling house, even their own, while carrying a prohibited drug would be guilty of the offence of unlawful entry. There is therefore no prima facie case against Mr. Bakal, on the charge in Count 4.

[150] It is admitted by counsel for Mr. Bakal that when the attack-related offences occurred, Mr. Bakal was under a valid undertaking to a police officer that required him to keep the peace and be of good behavior. His involvement in the event, if proved, is the antithesis of good behavior. Since there is a prima facie case on those charges, there is also a prima facie case on the breach of undertaking offence.

[151] Mr. Bakal is therefore committed to stand trial on the offences of attempted murder contrary to section 239(1) of the Criminal Code, aggravated assault contrary to section 268(2) of the Criminal Code, unlawful confinement contrary to section 279(2) of the Criminal Code, as alleged in counts 1-3 of the information before me, as well as the offence of breach of undertaking contrary to section 145(5.1) of the Criminal Code alleged in count 10. He is discharged on the charge of "unlawful entry" alleged in Count 4.

c. James Belance

[152] Counsel for Mr. Belance also concedes that there is a prima facie case against him on the aggravated assault. The evidence of Mr. Belance's participation in the attack certainly sustains that concession. There is evidence that he both took Mr. Said outside where the assault occurred, and brought him inside where the brutal attack continued.

[153] Indeed, while there is no evidence of any other ongoing direct action by Mr. Belance, there is evidence that the attack was carried on by more than one person. A jury could reasonably infer that Mr. Belance was a party to that ongoing attack. He was an integral player when it began, and was present again the following morning. Indeed, there is evidence that Mr. Bakal brought Mr. Belance clean shoes. Mr. Belance was either a party throughout the attack, or he encouraged it throughout by his continued presence after being a key player in the early stages of the violence.

[154] In coming to this conclusion I have considered that Ms. Walker claims she did not see Mr. Belance when she came downstairs to discover the attackers inside. Ms. Walker's evidence does not sit well with Ms. Daoust's account of witnessing Mr. Belance bringing Mr. Said into the house after the men had been in the backyard, or with the evidence about Mr. Bakal bringing Mr. Belance clean shoes the next morning, around the same time that Mr. Said was being discovered by passers-by.

[155] Moreover, Ms. Walker testified to an admission made by Mr. Belance, that if the police should come, she should tell them that he was responsible. In context, that admission is cogent enough to enable a reasonable jury to infer that Mr. Belance was a key player in the events that unfolded. Since there is a prima facie case that those events constituted an attempted murder, an aggravated assault, and unlawful confinement, there is a prima facie case against Mr. Belance on those offences.

[156] For the reasons expressed in the case of Mr. Bakal, however, there is no prima facie case against Mr. Belance of unlawful entry. In his case, as well, the only evidence is that he too had been invited to be in Ms. Walker's home and that he had already entered before his presence in the house became unlawful as the result of Ms. Walker's revocation of the invitation.

[157] Mr. Belance is therefore committed to stand trial on the offences of attempted murder contrary to section 239(1) of the Criminal Code, aggravated assault contrary to section 268(2) of the Criminal Code, and unlawful confinement contrary to section 279(2) of the Criminal Code, as alleged in counts 1-3 of the information before me. He is discharged on Count 4.

d. Said Farah

[158] Mr. Farah has defended against his committal on charges related to the attack on Mr. Said, both on the basis that there is insufficient evidence to identify him, and insufficient evidence to implicate him in the violence against Mr. Said.

[159] On the issue of identification, the failure by Mr. Klein to identify the photograph of Mr. Farah as Big Man, even though he knew Big Man, is not evidence that influences my decision as a preliminary inquiry judge. Even though this evidence is exculpatory, I cannot rely upon it to neutralize the evidence of identification that does exist. To do so would be to choose the evidence I prefer, which is not permissible for a preliminary inquiry judge. I must therefore determine whether there is sufficient evidence that is supportive of Mr. Farah's identification, taken in its own right.

[160] The first challenge for the Crown is that there is no direct evidence identifying Mr. Farah. Ms. Walker said of Mr. Farah's photograph that it reminded her of Big Man, but "I don't think it's him though." Ms. Walker's evidence is of negligible utility as proof that Big Man is Mr. Farah.

[161] When shown Mr. Farah's photo, Ms. Daoust said that she was "pretty sure" that he was there. She "did not know … if he is. But I think so." Ms. Daoust therefore offers a tentative opinion that Mr. Farah is similar enough to a man who was there that he could be that man, rather than direct evidence of identification. For a reasonable trier of fact to act on Ms. Daoust's evidence, they would have to infer based on supporting evidence that Ms. Daoust's opinion that she was "pretty sure" the man was there is correct, and that this man was Big Man.

[162] In support, the Crown is entitled to rely upon the fact that Saad Farah's appearance is consistent with the descriptions offered of Big Man, including race, the bald head, height, build and chin strap beard. A jury, properly instructed, could infer that when Ms. Daoust was attempting to identify someone who was there, she had Big Man in mid.

[163] Ms. Daoust's evidence of similarity finds support in evidence that Mr. Farah was at the Time Out Bar and Grill with Mr. Belance, at a location where Mr. Bakal was also observed. The evidence is that this occurred immediately after Mr. Belance and Bakal and Big Man were at Ms. Walker's residence together, and immediately before the three of them were again at the residence. In addition, Mr. Farah was wearing a toque, headwear attributed by witnesses to Big Man.

[164] To support its contention that there is a prima facie case of identity for Mr. Farah, the Crown also attempted, without success, to provide evidence linking Mr. Farah to the car used by Big Man, and the phone Big Man was said to have left behind.

[165] Even leaving this failed evidence aside, however, there is a bare prima facie case that Mr. Farah is Big Man. In my view, the fact that Ms. Daoust was "pretty sure" he was, coupled with evidence of similarity in appearance between Mr. Farah and Big Man, and the presence of Mr. Farah with Mr. Belance and Mr. Bakal, bookended by sightings of Big Man with these same men, would enable a reasonable jury to conclude that Mr. Farah is Big Man.

[166] One way to test this is to ask whether a judge, applying the prima facie case test, could appropriately direct a verdict of acquittal in the face of this evidence even while discharging the obligation to ensure that circumstantial identification evidence is capable of proving identity beyond a reasonable doubt before leaving it to a jury. In my view, a trial judge could not properly remove this case.

[167] The salient question in determining whether Mr. Farah should be committed to stand trial, then, is whether the conduct attributed to Big Man provides a prima facie case on the charges laid.

[168] To begin, there is no evidence upon which a reasonable trier of fact could find Mr. Farah to have been involved as a perpetrator in the violence against Mr. Said. I understand that in a joint attack "the blow of one is the blow of all," but there is simply no evidence from anyone that Big Man joined in any way in the attack on Mr. Said.

[169] The only suggestion that Mr. Farah may have been involved in any way at the attack stage of the narrative is the testimony by Mr. Klein that he believes all of the black men went outside when Mr. Said was taken outside, and that if one or more of the men did not, he did not see that. In my view this is too thin a reed on which to link Mr. Farah to the events outside and to infer his participation in what was transpiring.

[170] Indeed, the only evidence relating directly to Mr. Farah's participation in the attack were the insistent statements by Ms. Walker about Big Man, that while he was present the whole time, "he didn't do anything. Like he was … he more was mad that they had put him in that situation," saying "I'm going somewhere in life. I'm not one of you shocking guys at all." She said she was pretty sure "he sat in the living room the whole time." Later in her statement she said that if asked by the police Big Man "would say they did it and he was just there. Which is true. He didn't do anything." In reciting this I am not suggesting that a reasonable trier of fact would have to accept what Ms. Walker said in this regard. I am simply pointing out that this is the only evidence relating to Mr. Farah's direct role in the violence, and it is not evidence that could support a reasonable inference of guilt.

[171] Mr. Cavanagh argued that Big Man's presence in the house, during the attack, of which there is evidence, would enable a reasonable jury to infer his involvement, even in the absence of such evidence, either as a perpetrator, or a party through encouragement.

[172] The law of Canada relating to party liability for persons present when an offence is occurring is found in R. v. Dunlop, [1979] 2 S.C.R. 881. That case holds that:

"Mere presence at the scene of the crime is not sufficient to ground culpability. Something more is needed; encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with the accomplishment of the act, such as preventing the intended victim from escaping or being ready to assist the prime culprit."

[173] I understand that Justice Dickson, as he then was, was referring to party liability, but it is clear that he contemplated that mere presence is not enough to ground criminal liability generally. If I was to accept the Crown invitation and infer participation on the basis that persons who are not involved would not have remained for a protracted period of time at the scene of such horrendous violence unless they were involved, I would be converting mere presence into participant or party liability, without more.

[174] Moreover, in my view, the premise being offered to support the inference of complicity from prolonged presence – that innocent people do not remain at the scene of a crime unless involved – is not a reasonable one. People can remain at the scene for reasons ranging from fear, to convenience, or even to prurient interest, all without taking part. This is not a case like Mr. Belance's, where prolonged presence is combined with early participation to infer ongoing participation. Nor is this comparable to the case of someone who comes to a crime in progress with knowledge it is occurring and motive to engage, a point I will return to below. The evidence before me is that when the attack began, Big Man was present under circumstances that cannot discount his complete innocence. His decision not to leave is not, on its own, a reasonable basis for his committal.

[175] It is telling, in my view, that the theory being advanced by the Crown is aggressive enough to catch not only Big Man, but even Ms. Walker and those who sought refuge upstairs. The inference that they did not leave and therefore must be involved is not logically sound. To infer complicity on anyone present, without "something more," is rank speculation. It is an unworthy foundation for imposing the significant compromise on liberty that committal entails, even with the permissive standards of committal the law employs.

[176] If things had ended there I would have discharged Mr. Farah on all of the attack-related charges. There is evidence before me, however, that Big Man made himself a party to the assault-based offences by giving Mr. Bakal his father's car, enabling Mr. Bakal to either transport or arrange the transport of Mr. Said, to be left exposed under a tree, increasing his danger of dying. I can make nothing of the evidence that Big Man resisted Mr. Bakal's request for a time, or even protested what was happening. The evidence before me is that ultimately he relented, giving aid to the perpetrators of an event that obviously endangered Mr. Said's life.

[177] There is also evidence that would enable a reasonable trier of fact to infer that Big Man had the necessary mens rea, including for attempted murder.

[178] This is because where a person becomes a party to an offence, wilful blindness can suffice for knowledge of the relevant circumstances. According to R. v. Briscoe, supra at para 21, wilful blindness exists where:

"suspicion [of the accused] is aroused to the point where he or she sees the need for further inquiries, but deliberatively chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570 and R. v. Jorgenson, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgenson (at para. 103), "a finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?" [emphasis in original]

[179] The standard of "strong suspicion" described by Justice Sopinka and required for wilful blindness to operate, is that "it can almost be said that the defendant actually knew. He suspected a fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge": R. v. Briscoe, supra at para. 23.

[180] Given the nature of Mr. Bakal's reported request, Big Man knew that his father's vehicle was intended to be used to transport Mr. Said. While there is no direct evidence that Big Man knew Mr. Said was still alive, or that Big Man knew that Mr. Bakal intended to dump Mr. Said - naked, outside under a tree - the evidence does support a finding that Big Man must have been willfully blind to both facts, within the meaning of the decision in R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411. Specifically, there is evidence that he was present for a prolonged attack against a man who would go silent but then begin to yell and resist, and that repeated violence would be used if the man stirred. He was also present, on the evidence before me, when Mr. Said was implored to hurry up and die. It is a fair inference that someone present to witness this would have seen the risk that the victim being transported may not be dead, and that if he did stir, further violence, including to end his life, would likely be used against him. On this record, a reasonable jury could infer that Big Man intended to assist Mr. Bakal and the others, even if it meant assisting in the killing of Mr. Said.

[181] Even though the evidence before me suggests that Big Man got drawn into something he wanted no part of, I am therefore required to commit Mr. Farah to stand trial as a party to the offence of attempted murder of Afdal Said, contrary to section 239(1) of the Criminal Code, as alleged in Count 1.

[182] Since there is evidence that the vehicle was furnished to transport Mr. Said without his consent, Mr. Farah will also be committed to stand trial on the offence of unlawful confinement contrary to section 279(2) of the Criminal Code, as alleged in Count 3.

[183] Mr. Farah is not committed to stand trial on the charge of unlawful entry, contrary to section 349(1) of the Criminal Code, as alleged in Count 4. The only evidence before me is that when Mr. Farah entered with Mr. Bakal and Mr. Belance, he was in Ms. Walker's home with her permission.

[184] Finally, there is evidence from which it can be inferred that Big Man cleaned the motor vehicle that had been used to transport Mr. Said. While Ms. Walker did not say she witnessed Big Man do this directly, according to her testimony, she did hear Mr. Bakal ask to use Big Man's father's vehicle, saw him take it, and the next day she gave Big Man ingredients so he could clean his father's car. Based on this evidence, a reasonable jury could infer that Big Man cleaned the car in an attempt to remove any evidence of the transportation of Mr. Said. Mr. Farah must therefore be committed to stand trial on Count 5, for the offence of obstructing justice, contrary to section 139(2) of the Criminal Code.

e. Shakib Egeh

[185] While there is evidence that Mr. Egeh was inside Ms. Walker's residence prior to Mr. Said's arrival, there is no evidence that he was inside the residence either when Mr. Said arrived, or after Mr. Said was brought back into the residence by his attackers. There being no evidence of any entry by Mr. Egeh in connection with the offences alleged in this case, he is discharged on the offence of unlawful entry under Count 4.

[186] If Mr. Egeh is to be committed on the other offences he is facing, it must be on the basis of the events that occurred when Mr. Said was taken outside by Mr. Bakal and Mr. Belance, based on evidence that Mr. Egeh was behind Ms. Walker's home when this happened.

[187] As indicated, Ms. Walker indicated that when the door was opened, she saw as many as 10 men standing at the green box, where neighbourhood men often hung out. She also said that she could see Mr. Egeh outside, but that he "left like before anything happened." She added that Mr. Egeh runs from trouble.

[188] Ms. Daoust agrees that Mr. Egeh was outside, but she added that she saw him in the circle of men that she describes at one point as "surrounding" Mr. Said. While the men were yelling, watching or beating, she did not specify what Mr. Egeh was doing. She gave no evidence of anything said or done by him, and did not describe his proximity to Mr. Said when she saw him, or indicate how long she witnessed him standing there.

[189] Once again, the Crown offers the theory that a reasonable jury could infer that Mr. Egeh aided the attackers by being in the circle, or abetted them by encouraging the attackers through his presence.

[190] There is no evidence of any act of assistance by Mr. Egeh. Evidence relating to his role is not clear enough to support a reasonable inference of assistance, in my view, particularly not given Ms. Daoust evidence that men were "standing or beating." On this evidence, Mr. Egeh could have simply been standing there, even momentarily.

[191] Moreover, there is inadequate evidence of the location or nature of the circle of men at the point when Ms. Daoust saw Mr. Egeh, to permit a reasonable inference that all of the men comprising it were restraining Mr. Said, preventing his escape, or joining in his intimidation. The burden is on the Crown to present a prima facie case. It cannot do so, in my view, on the basis of evidence that is too imprecise to permit responsible inferences to be drawn.

[192] The Crown urges that, whether or not Mr. Egeh was participating or actively assisting in the attack on Mr. Said, his presence would have had the effect of encouraging the attackers. Once again, to accept this invitation would be to convert mere presence into complicity, contrary to the clear message in R. v. Dunlop, supra.

[193] Even if I was prepared to infer that the attackers would be encouraged by the presence of others in the backyard, who were not assisting Mr. Said, the Criminal Code expresses the requisite mens rea for aiders in section 21(1) (b), by saying that they must act "for the purpose of" aiding in the offence. Although the term "for the purpose of" is not expressed for those who become parties by "abetting" or encouraging an offence pursuant to section 21(1)(c), it is implicit that it, too, carries the same mens rea. The case law treats the mens rea, "for the purpose of," as including intention. As the Ontario Court of Appeal held in R. v Dooley, 2009 ONCA 910 at 18, leave to appeal refused, 2010 SCCA 179:

"The Crown must prove that the alleged aider or abettor acted "for the purpose" of aiding or abetting – meaning that they acted with the intention of aiding or abetting the perpetrator in the commission of the crime. This requirement can only be met if the aider or abettor has knowledge of the crime that the perpetrator intends to commit"

[194] During the course of its submissions the Crown was mindful of the difficulties of inviting a reasonable inference that Mr. Egeh acted for the purpose of encouraging the attempted murder of Mr. Said given that the attack on Mr. Said was just beginning, and did not yet yield a basis for apprehending that efforts would be made to kill him. The Crown therefore invited me to commit Mr. Egeh, in the alternative, of being a party by encouraging an assault on Mr. Said, which, if true, would make Mr. Egeh responsible for all of the foreseeable consequences of that assault, including the aggravated harm that later ensued. In my view there is not even a prima facie case for this charge.

[195] Specifically, there is no basis for drawing a reasonable inference that Mr. Egeh was outside for the undetermined period he was, attending for the purpose of encouraging the attack. Once again, the evidence of the precise location and nature of his presence is insufficient to yield a reasonable inference that this was his purpose. There is not even sufficient evidence to enable a reasonable inference of wilful blindness, leading to a finding of mens rea.

[196] I am therefore discharging Mr. Egeh on all charges.

f. Ramadan Osman, Makador Ali, and Fabrice Batubenga

[197] The Crown theory is that Mr. Ramadan Osman, a.k.a. "Holiday," is a lynch pin to the offences against Mr. Said, because he is the one with the most powerful motive - to avenge the attack on his brother, Isaack Osman. Since Mr. Ali, a.k.a "Lucky," and Mr. Batubenga, a.k.a "Frenchie," are associated with Mr. Osman during the events in question the Crown theory is that these associates acted pursuant to the same motive to support Mr. Osman.

[198] All three of these men reject this theory and contend that there is no evidence to support their committal. In addition, counsel for Mr. Osman and Mr. Ali resist committal by urging that there is insufficient evidence to identify them. I will address the identification issues first. In my view they can be easily disposed of.

[199] In Mr. Osman's case, while Ms. Walker did express uncertainty when speaking about "Holiday" at the time she selected Mr. Osman from a photographic lineup, it would be open to a jury, interpreting what Ms. Walker said, to conclude that what Ms. Walker was uncertain about was whether Mr. Osman's nickname was "Holiday." Ms. Walker's comments are therefore capable of being interpreted as direct evidence that Mr. Osman was there. I cannot, as a matter of law, discharge Mr. Osman based on identification concerns.

[200] For Mr. Ali, Ms. Davies agrees that Ms. Walker identified Mr. Ali's photograph in Lineup 4, as "Lucky," with an unequivocal "yes." Ms. Davies argues, however, that in context the identification is equivocal, because she contends that in Lineup 10 Ms. Walker provided a tentative identification of another man "as Mr. Ali."

[201] Even if this is an accurate description of what happened with Lineup 10, in light of the direct identification given by Ms. Walker when viewing Lineup 4, I would nonetheless be obliged to proceed on the basis that there is sufficient identification to commit Mr. Ali. The conflict, if any, between the identification in Lineup 4 with Lineup 10 is a trial matter.

[202] In any event, it is not at all clear that the provisional identification that occurred in Lineup 10 was intended by Ms. Walker to be "Lucky." It is open to a jury to find, and there is strong reason for them to do so, that the identification in Lineup 10 in fact purported to be of one of the Haitian persons Ms. Walker had never seen before who she said had showed up with "Frenchie," "Lucky" and "Holiday."

[203] The challenge for the Crown in securing the committal of these three men is not therefore with identification. It is with the sufficiency of the evidence that they participated in or were parties to the attack and abduction of Mr. Said.

[204] As indicated, the Crown theory depends largely on Mr. Osman's motive, which Mr. Cavanagh contends was shared by his associates who came to his assistance. Motive can, of course, provide circumstantial evidence supporting a material inference, including the identity of those implicated in a crime. It would be perilous and inappropriate, however, for a jury to infer guilt based on motive alone, no matter how intense that motive is. Where motive is relied upon, therefore, the Crown must offer additional evidence that, when combined with evidence of motive, is sufficient to enable a reasonable jury to conclude that the accused committed the material offence.

[205] In this case, there would be sufficient evidence of the involvement of the men if the evidence supported a reasonable inference that they were present while force was being exercised against Mr. Said. If they were present at that point in time, their's would not be a case where the Crown would be dependent upon mere presence. This is because the evidence before me is that the three men came to the scene of the attack on Mr. Said, after being summoned to come by Mr. Bakal. It would be open to a reasonable juror to infer that the men would have been informed of what was going on, even if they did not know beforehand, and would have come knowingly. Given Mr. Osman's significant interest in the welfare of his brother, he had a motive not only to come but to involve himself. The decision of his associates, Mr. Batubenga and Mr. Ali, to join Mr. Osman supports a reasonable inference that they chose to make his cause their own. When all of this is coupled with the evidence that the three men participated in taking Mr. Said into the backyard for a time, it is sufficient to enable a reasonable inference that the men became participants in the joint attack, provided, of course, that there is evidence that the attack on Mr. Said was ongoing when they were present.

[206] This is where counsel for the three men make their stand. They contend that the only reasonable inference on the evidence is that by the time these men arrived, the assault was over.

[207] First, no witnesses claim, in any of the narratives, to have seen any of these men present when Mr. Said arrived at Ms. Walker's house, and no-one claims they were present when Mr. Said was initially brought inside and the attack begun. Indeed, no-one even places them in the backyard.

[208] Ms. Walker is the only witness who offers evidence of these men being present during any of the events that unfolded. Specifically, Ms. Walker said that after Mr. Farah initially refused to permit his car to be used to transport Mr. Said, Mr. Bakal wanted to "get rid of the body" and so he called "Frenchie," "Holiday," and "Lucky." Indeed, she said that Mr. Bakal called a "whole bunch of people," after which a large number of people arrived," including Frenchie, Holiday and Lucky. When asked when the men who had not initially been there arrived, she estimated maybe an hour after Mr. Said was brought back inside.

[209] Ms. Walker then described what happened when these three men arrived. She said they did not take the body. "They just lost it in the kitchen, yelling and arguing, not knowing what the hell to do," "Over everything that was going on and then they left," "No they didn't … they took the body outside at one point," "And then brought the body back in" "They didn't leave with, um." Ms. Walker was then cut off by a further question by Det. Dieu.

[210] Counsel for these accused men urge that the only reasonable inference on this record is that when the men arrived the assault was over. After all, the evidence is that Mr. Bakal called for help disposing of "the body," according to Ms. Walker, an hour or so after Mr. Said was brought back into the house after the initial assault outside. These men came but refused to get involved, leaving without Mr. Said, in spite of Mr. Bakal's request.

[211] I do agree that this is the most reasonable inference on the evidence. The law does not permit me to select, however, among competing reasonable inferences, even if the most compelling inference would favour acquittal. If there is an inference available that these three men arrived while the attack was underway, committal on the offences of attempted murder, aggravated assault, and unlawful confinement necessarily follows for all three men. And on the evidence before, me, there is a bare foundation upon which a reasonable jury could infer their presence while the assault was underway.

[212] First, Mr. Klein suggested that the attack may have gone on for as long as two hours or more, an estimate that Ms. Walker herself offered in her November 17, 2013 statement at p.38. If these men arrived an hour after Mr. Said was brought back inside, as Ms. Walker said in her November 20, 2013 statement, on this two hour time estimate the attack would still have been underway when Mr. Osman, Mr. Ali and Mr. Batubenga were at Ms. Walker's residence.

[213] Second, Ms. Walker described three young Haitian men being present. She said they came with Frenchie. This is important because she described these three men as being present when she was told to go upstairs, after yelling at the men. It is unclear whether Ms. Walker was describing the same event that occurred when she initially came downstairs to first discover Mr. Said on the floor only to be told to go upstairs, but it is open to a reasonable jury to understand that it was. On this version of events, Frenchie, and therefore Mr. Osman and Mr. Ali who came with him, would have been present for the heart of the attack.

[214] Third, when it was put to Ms. Walker on November 20, 2013 that "[Frenchie, Lucky and Holiday] were still there while the incident was going on in your kitchen?" she said "Uh, yes." It is possible that a jury could understand the reference to the "incident" as an allusion to the attack.

[215] Similarly, Ms. Walker said that Frenchie was "involved." While this comment does not unpack the nature of Mr. Batubenga's involvement, the jury could treat it as evidence that Mr. Batubenga was involved in the crime that was occurring, namely the aggression. Since the evidence is that Mr. Ali and Mr. Osman arrived with Mr. Batubenga, this inference would also ensnare these men, as well, as it would put all of them at Ms. Walker's during a horrific assault that Mr. Osman and his associates had a compelling motive to support.

[216] In my view, there is therefore a prima facie case against Mr. Osman, Mr. Batubenga, and Mr. Ali of the offence of attempted murder, aggravated assault, and unlawful confinement as alleged in Counts 1-3. I am bound by law to commit them.

[217] There is not, however, a prima facie case on the unlawful entry charge, contrary to section 349(1) of the Criminal Code, as alleged in Count 4. The evidence before me is that Ms. Walker was present when these men were called to remove the body from her house, something that she wanted to happen, and there is no evidence that she raised any objection to their entry. Moreover, they were summoned by Mr. Bakal, a frequent and welcome guest at Ms. Walker's. In the face of this and in the absence of evidence that Ms. Walker objected to the presence of these men when they entered, it is not possible to infer that these men entered without lawful excuse or had the mens rea to do so.

[218] I am therefore committing Mr. Batubenga, Mr. Ali and Mr. Osman to stand trial for attempted murder, aggravated assault, and unlawful confinement, as alleged in Counts 1-3. I am discharging them of unlawful entry, as alleged in Count 4.

[219] This does not end matters for Mr. Batubenga. He also stands charged with four further offences described in Count 6 of pointing a firearm contrary to section 87; Count 7 of using a weapon, a handgun, in the commission of an assault on Afdal Said contrary to section 267(a); Count 8 of breaching a recognizance by being in the presence of Mr. Ramadan Osman contrary to section 145(3); and Count 9 of breaching a recognizance by not keeping the peace and being of good behavior, also contrary to section 145(3).

[220] With respect to Counts 6 and 7, while there is a passing reference in the evidence of Ms. Walker to Mr. Batubenga having a handgun, the Crown conceded correctly that there is no admissible evidence before me that he pointed a handgun or otherwise used a handgun in an assault on Mr. Said. I am therefore discharging Mr. Batubenga on those counts.

[221] With respect to the breach of recognizance charge in count 8, there is evidence that Mr. Batubenga was in the company of Mr. Osman, in breach of the undertaking that was admitted before me. He is therefore committed on Count 8.

[222] Since there is evidence before me that Mr. Batubenga participated in the other offences described, there is also a prima facie case that he was in breach of his undertaking, as alleged in Count 9. Mr. Batubenga will therefore also be committed to stand trial on that charge, in Count 9.

Dated this 4th day of December 2015

_______________________________

Justice David M. Paciocco

Footnotes

[1] R v. Cinous 2002 SCC 29 at para. 88.

[2] Ibid. at para. 9.

[3] The standard of proof has also been integrated into the air of reality test applied to determine whether a defence can be raised. See R. v. V.(A.C.) [2003] O.J. No. 6211 (Ont.C.A.). One would imagine that if this threshold is required to put a defence on the table, the threshold for putting a prosecution case on the table should not be lower.

[4] She explained elsewhere in her statement that Big Man said, "You can't use the car. It's in my father's name."

[5] In her November 17, 2013 statement she described a caller, who at that point she did not name, as yelling, "Come now. Come Now. And Move him. We need to move him."

[6] The fact that Ms. Walker checked Mr. Said's pulse is circumstantial evidence that her observations were that he was badly injured enough that he could be dead. Her act of checking the pulse, being offered as evidence of that belief, is implied hearsay within the meaning of R. v. Baldree 2013 SCC 35, [2013] 2 S.C.R. 520. I am considering this implied hearsay as evidence before me since her act, in the heat of the event, is the equivalent of an excited utterance.

[7] Mr. Bakal's statement, as testified to, is a co-conspirator's statement made in furtherance of a conspiracy, therefore admissible against all of those who were participating.

[8] November 20, 2013 interview, p.37.

[9] November 20, 2013 interview, pp.32.

[10] November 20, 2013 interview, pp.37-38.