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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

Court File No.: Toronto Information No. 15-40017721

Date: 2016-06-27

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Abel Abdo, Dominique Jermaine Wilks and Johnathan McLennan

Before: Justice David A. Fairgrieve

Reasons for Committal released on: June 27, 2016

Counsel:

• David Wright, for the Crown
• Hussein Aly, for the accused, Abel Abdo
• Ayderus Abdusalan Alawi, for the accused, Dominique Jermaine Wilks
• John Kaldas, for the accused, Johnathan McLennan

FAIRGRIEVE J.:

Introduction

[1] This preliminary inquiry proceeded into eight of the eleven charges set out in a single information alleging offences committed by the three co-accused. Seven of the counts jointly charged all three young men with a number of crimes arising from the shooting of a person named Asher Jalal-Din. The shooting occurred the afternoon of July 16, 2014, in a parking lot behind an apartment building located near Keele St. and Wilson Ave. in Toronto. Specifically, those charges are the following:

• Count 1: attempted murder by discharging a firearm (Criminal Code, s. 239(1));
• Count 2: conspiracy to commit murder (s. 465(1));
• Count 4: possession of a firearm without a licence (s. 92(1));
• Count 5: unauthorized possession of a loaded restricted firearm (s. 95(1));
• Count 6: discharge firearm with intent to wound (s. 244(1));
• Count 7: discharge firearm with intent to endanger life (s. 244(1));
• Count 8: assault with a weapon, to wit: pepper spray (s. 267(a)).

[2] With respect to the remaining charges in the information, Mr. Wright, counsel on behalf of the Crown, stated that he was withdrawing the breach of probation charges against Abel Abdo or Johnathan McLennan in Counts 3, 10 and 11. Mr. Wright indicated, however, that the Crown was still proceeding on Count 9, alleging that on the day of the shooting, McLennan breached the house arrest condition of the recognizance by which he was then bound. While that charge is within the absolute jurisdiction of this court to try under s. 553(a)(viii.1), both parties agreed that it should follow along with the other indictable charges against McLennan.

[3] The three co-accused elected to be tried by a judge and jury following a preliminary inquiry. Although each defence counsel maintained in his closing submissions the position taken by him at the commencement of the hearing that a committal for trial was not warranted with respect to any charge against his own client, it should be added that significant efforts were made by the Crown and defence during the course of the hearing to narrow the issues and to expedite the admission of the evidence relevant to them.

[4] Most significantly, each of the three accused has now conceded that there is sufficiency evidence identifying him as one of the three people present at the scene when Jalal-Din was shot. Moreover, it is not disputed that the evidence would support a reasonable finding that McLennan was the person who both drove the victim to the location and pepper sprayed him in the face immediately before he was shot, that Dominique Wilks was the actual shooter, and that Abdo both drove Wilks to and from the scene, but also stood next to the victim when the shooting occurred. What remained in issue was the sufficiency of the evidence that each individual accused was at least a party to each of the offences with which he was charged, having regard, of course, to all of the essential elements of each specific offence.

[5] Asher Jalal-Din, the victim of the shooting, testified that he was only able to make an eyewitness identification of McLennan, since McLennan was the only one of the three accused he had known before the shooting. Mr. Kaldas, counsel for McLennan, fairly conceded from the beginning that Jalal-Din's evidence was sufficient for purposes of this hearing to establish that McLennan had picked up Jalal-Din in the black Mercedes shown on recordings from various security cameras, and that he (McLennan) had driven the victim to the parking lot a short time before two other men arrived in a red Honda. There was clearly evidence that Jalal-Din was then shot by the person who had been the passenger in the Honda and who had a gun. Likewise, Mr. Kaldas admitted, as any responsible counsel would have done, that a jury would be entitled to accept Jalal-Din's evidence that immediately prior to the shooting, as a struggle over the gun occurred between him and the passenger who got out of the Honda, McLennan pepper-sprayed Jalal-Din in the face. The issues now concern the reasonable inferences that might be available to the trier of fact from that evidence and the other circumstances that could potentially be accepted by a jury.

[6] Similar concessions concerning the sufficiency of the circumstantial evidence identifying Wilks as the shooter and Abdo as the driver of the red Honda that brought Wilks to the scene were eventually made by both Mr. Alawi, counsel for Wilks, and by Mr. Aly, counsel for Abdo, during the course of their respective submissions concerning committal or discharge. It appears that this hearing provided a useful opportunity for the Crown both to disclose and to explain the significance of some aspects of the Crown's case that might not have been clearly conveyed or understood earlier. In the end, both Mr. Alawi and Mr. Aly expressly conceded that the circumstantial evidence, derived mainly from phone records, the victim's descriptions and the recordings from the various Toronto Community Housing security cameras of the two vehicles and their occupants at the relevant times, cumulatively permitted reasonable inferences to be available that Wilks was indeed the person who shot Jalal-Din and that Abdo was the driver of the red Honda that brought the shooter to the scene. Despite Jalal-Din's stated inability to identify anyone other than McLennan, it was ultimately conceded, again quite properly in my view, that Wilks and Abdo could reasonably be found by a trier to be the two people who did what Jalal-Din attributed in his testimony to the passenger and the driver of the Honda, respectively.

[7] It was not argued, nor could it have been, that a trier of fact, acting reasonably, would somehow be precluded from accepting Jalal-Din's evidence as to the circumstances surrounding the shooting. Moreover, in the end, defence counsel did not submit that there were any obstacles to a jury's making the inferences sought by the Crown that were available from the phone records, security cameras and other evidence, to establish the communications and association of the three co-accused at the relevant times leading up to the shooting and immediately afterwards. Nonetheless, all three defence counsel still maintained in their submissions that, having regard to the essential elements of the particular offences with which his client was charged, the evidence did not warrant a committal for trial of his own client on any of the charges.

[8] In the circumstances, I think the most logical course would be to review first the evidence on which the Crown relies with respect to the issues identified by the defence. I should say that Mr. Wright's written submissions provided what was admitted to be an accurate and helpful summary of the relevant evidence. As already indicated, though, the Crown's case depended largely on the evidence given by Jalal-Din, the victim of the shooting. According to the Crown, McLennan's belief that he had been cheated by Jalal-Din out of his portion of the proceeds of a forged cheque Jalal-Din had deposited into Wilks's Royal Bank account, along with the "disrespect" that that entailed, provided the motive for the shooting that occurred two days later.

[9] After briefly stating the test for committal that applies at this stage of the proceeding, which was not the subject of dispute in any event, I intend to identify the elements of the individual charges that give rise to controversy here. I appreciate that I must give separate consideration to the evidence against each accused in relation to each particular charge.

The Evidence Concerning the Bank Fraud Two Days Before the Shooting

[10] The fraud, initiated by Jalal-Din, involved Jalal-Din's using a Royal Bank ATM the afternoon of July 14, 2014, to deposit a forged cheque, written by Jalal-Din and made payable to Dominique Wilks, in the amount of $1,460. The cheque was deposited then by Jalal-Din into Wilks's account at the Royal Bank, which, according to the bank records, had been opened by Wilks earlier that month. To enable the deposit to be made by Jalal-Din at the ATM, McLennan had given him both Wilk's temporary bank card and his PIN. That McLennan had acquired the card and PIN willingly from Wilks was not something Jalal-Din witnessed or could testify to, but defence counsel effectively conceded that a trier of fact could reasonably draw such an inference from, collectively, the evidence of Jalal-Din concerning the transaction, the confirmatory ATM bank records and photos from the ATM security camera, the bank records concerning the accountholder Wilks and his signature, and telephone records indicating a brief phone call from McLennan's number to Wilks's immediately before, Jalal-Din testified, he obtained from McLennan the accurate PIN that allowed him to make the deposit at the ATM.

[11] The plan, which Jalal-Din himself described as "a pretty stupid scam," was simply that he and McLennan would withdraw the proceeds of the cheque before the cheque was dishonoured and returned by TD Canada Trust, the bank on which the forged cheque purported to be drawn, a process that normally took 24 to 48 hours. Jalal-Din testified, truthfully or not, that he and McLennan were to meet at the bank the following morning, withdraw the $1,460, and then split the proceeds. The implication of Jalal-Din's evidence was that the Royal Bank would have no recourse against Wilks at that time, because there had never been more than a nominal amount of money in the account. The way events unfolded, however, Jalal-Din was able to have the $1,460 credited to his own Master Card account (which was later reversed by RBC) and McLennan received nothing. The implication was that McLennan felt "disrespected" by being cheated out of the $730 he expected. Jalal-Din's scam also led RBC to freeze Wilks's bank account, which could reasonably have caused him, it might be inferred, to have borne a personal grudge against Jalal-Din as well.

The Victim's Evidence Concerning the Shooting Itself

[12] Jalal-Din testified that he and McLennan agreed to meet on July 16, 2014, at the Burger King at Keele and Eglinton, so they could try a similar bank scam with other forged cheques, this time at a TD Bank. Jalal-Din testified as well that he invited his friend John Owen Palmer to come along with him, although he not tell McLennan that Palmer was coming. Why Jalal-Din actually wanted Palmer to be present is itself the subject of an inference a trier might reasonably draw. When McLennan arrived to pick him up at the Burger King in the black Mercedes he was driving, Jalal-Din got into the front seat and Palmer sat in the backseat on the driver's side. McLennan told them that he was driving first to the back of an apartment building where his mother would meet them and give them the bank card they were going to use at the TD Bank.

[13] When they arrived in the parking lot behind the building, Jalal-Din further testified, McLennan parked the car and used his cellphone to call someone. When there was apparently no answer, McLennan got out and ran up to the "buzzer" at the door to the building, leaving Jalal-Din and Palmer still in the car. At that point, Jalal-Din continued, a white BlackBerry left on the backseat started ringing, so Palmer yelled out to McLennan, "Yo, bro, your phone's here," so McLennan came back to the car and took the phone that had been ringing. When he got back into the driver's seat, McLennan said something like "Yeah, they're here," to which Jalal-Din replied, "Okay, cool." McLennan then reversed his Mercedes and drove to a new position right beside a red Honda that had just arrived in the parking lot.

[14] Events then happened very fast, according to Jalal-Din's testimony. The driver of the red Honda (who, it is now conceded, could reasonably be inferred to be Abdo) got out of the car, as did his passenger (who, it is now conceded, could reasonably be inferred to be Wilks). Wilks approached Jalal-Din, who at that moment was getting out of the front passenger seat of the Mercedes. As he did that, McLennan went out the driver's door, ran around to Jalal-Din and pepper-sprayed him in his face and eyes. At that point, still according to Jalal-Din's evidence, Palmer went out the rear driver's side door of the Mercedes and ran off, evidently seeking to avoid any involvement in what was happening.

[15] Jalal-Din testified further that at that time, "I started to panic. I didn't know what was going on, and I was just trying to rub my eyes, kind of, and that actually made it worse." At that point, he suddenly could see that the Honda passenger [Wilks] was running towards him holding a gun. The gun itself was wrapped in a bandana, but with its barrel protruding, pointed at Jalal-Din. The witness testified that he [Wilks] first put the gun to his [Jalal-Din's] chest, but that he, still rubbing his eyes in pain, tried to grab the gun himself. During the struggle for the gun, he testified, the Honda driver [Abdo] came up to his left side, McLennan was to his right, and the shooter [Wilks] was facing him. Jalal-Din testified that he managed to pull the gun down a little from his chest, but then "the shot just went off." He fell to the ground after being shot in his right testicle and leg, lying on his left side with his hands up to his face.

[16] At that point, Jalal-Din continued, the shooter "tried to come on top of me," and Jalal-Din himself was "pretty much saying, 'Stop, like, don't do this,'" as he heard the gun go "click click," at least twice, perhaps three times, as it was pointed at his "upper body" or, as he showed in the witness box, his head. The transcript has an unusually large number of typographical and other errors throughout, but Mr. Wright's question and Jalal-Din's answer concerning this point appear as follows:

Q. And you've indicated your upper body and you've circled your hand around your head. Could you assist us a little further as to where you think the gun was pointed?

A. Um, just again on my upper body level because he was a little bit further than me – like where you are almo-, no, a little bit closer than you, but back, and I was on the floor, so he was pointing it in my random area, like general. [sic]

[17] When the gun failed to fire again, the victim testified, all three of his assailants "pivoted," got into the two cars and drove off. Jalal-Din testified that he was left lying on the ground, in great pain from both the burning in his eyes and his gunshot wound. People came to help him, and an ambulance arrived shortly afterwards to take him to the Sunnybrook trauma centre, where doctors found that the shot had penetrated his scrotum and shattered the top of his left femur.

[18] As already noted, while Jalal-Din provided descriptions of the three men in his testimony that were consistent with McLennan (whom he already knew from the bank scam) being the driver of the Mercedes, Wilks being the shooter, and Abdo being the driver of the red Honda, he said he was not able to identify anyone in the courtroom apart from McLennan, since things happened so quickly, he had been pepper-sprayed in the eyes, and he was in agony after having been shot.

[19] Despite the victim's inability to make an in-dock identification of either the shooter or the driver of the red Honda, for purposes of this hearing, to repeat it, both Mr. Aly and Mr. Alawi conceded that the trier of fact could reasonably infer from the other circumstantial evidence that Wilks was in fact the shooter and that Abdo was the driver of the car that took the shooter to the scene of the shooting.

[20] Since it was not disputed that, at least in theory, it would be open to a jury to accept Jalal-Din's evidence in its entirety, regardless of how successful defence counsel might have been in demonstrating some of his frailties as a witness when they cross-examined him, it is unnecessary, for present purposes, to refer to any of the evidence from other witnesses which could be regarded as inconsistent with certain details of Jalal-Din's testimony. Similarly, I think, it is not necessary to canvass the voluminous circumstantial evidence gathered by Det. Const. Sehdev in the course of his very thorough investigation. It is enough simply to say that it eventually persuaded defence counsel, quite fairly, to concede here that a reasonable trier of fact could reasonably infer that Wilks was indeed the shooter, that McLennan was indeed the person with a motive to harm Jalal-Din and arrange the shooting, and that Abdo was indeed the driver of the Honda and the third assailant at the time of the shooting.

The Test for Committal

[21] Not surprisingly, there was no dispute concerning the law applicable at this stage of the proceedings. In accordance with the judgment of the Supreme Court of Canada in U.S.A. v. Sheppard (1976), 30 C.C.C. (2d) 424, an order committing an accused to stand trial on a particular charge is required when there is admissible evidence which could, if it were believed by the trier, result in his conviction for that crime.

[22] Since the Crown's case in relation to the potential culpability of each individual accused present when Jalal-Din was shot depends on inferences to be drawn from the evidence that was heard, I think that I should instruct myself in accordance with the principles recently summarized by the Court of Appeal in R. v. Wilson, 2016 ONCA 235 (March 31, 2016). Under the heading "The Role of the Preliminary Inquiry Judge," Benotto J.A. quoted s. 548(1) of the Criminal Code, referred to the Sheppard test, and then stated the following, at paras. 22 to 24:

[22] The test is the same whether the evidence is direct or circumstantial. However, with circumstantial evidence, there is an inferential gap between the evidence and the matter to be established. The question becomes whether the elements of the offence to which the Crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence.

[23] The preliminary inquiry judge must therefore engage in a limited weighing of the evidence to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This does entail considering whether he or she would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. Rather, the preliminary inquiry judge asks whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 1 and 23.

[24] Any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the prosecution's favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be drawn: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18. To weigh competing inferences is to usurp the function of the trier of fact: R. v. Clarke (2002), 159 O.A.C. 221, at para. 4.

[23] I should also direct myself that, as Benotto J.A. stated in the passage just quoted, there is a significant difference between a reasonable inference that is available from the evidence and mere speculation or conjecture. As explained in the reasons given by Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at p. 209 (Ont. C.A.):

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can reasonably and logically be drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.

Similarly, in R. v. Munoz (2006), 205 C.C.C. (3d) 70 at pp. 79-85 (Ont. S.C.J.), Ducharme J. provided a very useful discussion of the distinction between available reasonable inferences and impermissible speculation.

[24] In R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 at para. 20 (S.C.C.), McLachlin C.J.C. made the following observation concerning the limited purpose of a preliminary inquiry:

Critically, the preliminary inquiry is not meant to determine the accused's guilt or innocence. That determination is made at trial. The preliminary inquiry serves a screening purpose, and it is not meant to provide a forum for litigating the merits of the case against the accused.

Likewise, in R. v. Hynes, (2001), 2001 SCC 82, 159 C.C.C. (3d) 359 at para. 30 (S.C.C.), the Chief Justice repeated that "[t]he preliminary inquiry is not a trial. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial." McLachlin C.J.C. then went on there to quote Estey J.'s statement in Re Skogman and The Queen (1984), 13 C.C.C. (3d) 161 at p. 171 (S.C.C.), that "[t]he primary purpose of a preliminary hearing is to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process." That screening function remains limited, however, as repeated in Arcuri at para. 34, to an assessment of whether, on "the whole of the evidence", a reasonable jury properly instructed could return a finding of guilt.

The Sufficiency of the Evidence Concerning Each Accused in Relation to Each Charge

Count 1: Attempted Murder by Discharging a Firearm (s. 239(1))

[25] It was accepted by all parties here that the offence of attempted murder requires, as an element of the offence, a specific intent to cause death to the victim: R. v. Ancio (1984), 10 C.C.C. (3d) 385 at p. 402 (S.C.C.)

[26] I accept the concession by defence counsel here that a jury could reasonably infer from all of the evidence that it was Wilks who discharged the firearm that he brought to the scene, that Wilks fired the shot as the victim pulled the gun down from the area of his chest at which Wilks was pointing it, and that Wilks tried to fire the gun twice more, albeit unsuccessfully, as he pointed the gun at Jalal-Din's "upper body" or head.

[27] The evidence here is quite distinguishable, in my view, from the evidence in R. v. Rajanayagam, [2001] O.J. No. 393 (S.C.J.), a decision cited by Mr. Aly, where Archie Campbell J. quashed a committal for trial on a charge of attempted murder in the context of a gang retaliation attack on the victim by beating him with a baseball bat and shooting him three times in the legs. In my opinion, there is ample evidence here to justify an inference that Wilks repeatedly pulled the trigger of the gun while pointing it at Jalal-Din's chest or other vital area, and that even though the bullet that was fired ended up penetrating just his scrotum and thigh, apparently causing no life-threatening injury, that happened only because the victim managed to pull the gun down from his chest as Wilks fired it. I am satisfied that there is sufficient evidence that would permit a jury to find that Wilks discharged the firearm with the specific intent to kill the victim. Whether the trier of fact will actually draw that seemingly compelling conclusion is a matter for the jury's determination, not mine.

[28] It would also be open to the trier of fact, in my view, to draw a reasonable inference that both McLennan and Abdo participated in the attempted murder of Jalal-Din by knowingly aiding or abetting Wilks in the commission of the offence.

[29] There is clear evidence that McLennan had reason to feel animosity towards Jalal-Din after he was cheated, he believed, of the $730 that was supposed to be his share of the proceeds of the Royal Bank fraud. The jury could easily find, just as Mr. Wright submitted, that this became a motive for an intended murder, irrational though it might sound. A jury could reasonably find that life is cheap, as they say, in some quarters. It would be open to the jury to infer that McLennan enlisted Wilks and Abdo to join his effort to exact revenge on Jalal-Din, sufficient to be characterized as knowingly encouraging Wilks to shoot and kill the victim. A jury might reasonably conclude that since McLennan was known to Jalal-Din and could identify him as a participant in the shooting to the police, McLennan would be unlikely to have intend to leave the victim simply wounded and alive. Similarly, the evidence that McLennan drove Jalal-Din to the parking lot and pepper-sprayed him in the face, just as Wilks approached with his gun pointed at the victim's chest, clearly permits an inference, in my opinion, that McLennan meant to disable the victim for the purpose of facilitating a fatal shooting. That would be sufficient, in my view, to make McLennan a party to the attempted murder by knowingly aiding the commission of the offence by the shooter.

[30] With respect to Abdo, the evidence that he drove Wilks to the scene of the shooting, that he got out of the Honda and stood on one side of the victim while Wilks shot him, and that he then drove the "getaway" car allowing the shooter to escape from the scene, at least leaves available as an inference that he knowingly assisted Wilks in the commission of the attempted murder.

[31] A jury could reasonably find, I am sure, that the three accused did not end up in the same location at the same time merely by coincidence, and that it was not by accident that Wilks brought a gun which he used immediately upon his arrival at the scene to shoot Jalal-Din, particularly in light of the other evidence of telephone contact between McLennan and the two men in the Honda just prior to the shooting. A properly instructed jury might reasonably infer that all three were acting in concert to achieve the objective of killing Jalal-Din and conclude that each of the three was a party, within the meaning of s. 21, to the attempted murder.

[32] In those circumstances, I am of the opinion that all three could reasonably be found guilty of attempted murder by discharging a firearm, and it follows that I am obliged to commit all three to stand trial on the charge.

Count 2: Conspiracy to Commit Murder (s. 465)

[33] In R. v. Controni; Papalia v. The Queen (1979), 45 C.C.C. (2d) 1 at pp. 17-18 (S.C.C.), Dickson J. explained the nature of the offence of conspiracy:

To conspire is to agree. The essence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence: Paradis v. The King (1933), 61 C.C.C. 184 at p. 186 (S.C.C.). The actus reus is the fact of agreement: D.P.P. v. Nock, [1978] 3 W.L.R. 57 at p. 66 (H.L.). …Any number of persons may be privy to it. … The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which all of the alleged offenders were privy. In R. v. Meyrick and Ribuffi (1929), 21 Cr. App. R. 94 at p. 102 (C.C.A.), the question asked was whether "the acts of the accused were done in pursuance of a criminal purpose held in common between them", and in 11 Hals., 4th ed., at p. 44 it is said:

It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose.

There must be evidence [at trial to prove] beyond a reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal.

To put Dickson J.'s last sentence in words applicable to this preliminary inquiry, there must be evidence capable of satisfying the trier beyond a reasonable doubt that an individual alleged conspirator acted in concert with others in pursuit of the common goal alleged.

[34] While many other cases define in slightly different ways the constituent elements of the conspiracy offence created by s. 465 of the Criminal Code, Doherty J.A. provided a helpful description of its actus reus in R. v. Alexander and Blake (2005), 206 C.C.C. (3d) 233 at paras. 46-48 (Ont. C.A.):

The actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective. Co-conspirators share a common goal borne out of a meeting of the minds whereby each agrees to act together with the other to achieve a common goal. …

It follows from the mutuality of objective requirement of the actus reus that a conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy … Knowledge and acts in furtherance of a criminal scheme do, however, provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred.

[35] In R. v. Cebulak (1988), 46 C.C.C. (3d) 437 at pp. 440-41 (Ont. H.C.J.), Doherty J. (as he then was) stated:

Absent a common object, mutual conduct which involves the commission of one or more offences does not render those involved in the conduct liable as conspirators although they may be jointly liable for any substantive offences which are in fact committed …

Mere knowledge of another's criminal object does not make one a co-conspirator with that person …

[36] In the present circumstances, I am satisfied that for the reasons already stated in relation to the substantive attempted murder offence charged in Count 1, an agreement among the three accused to pursue that objective could reasonably be inferred from their knowledge and participation in that criminal scheme.

[37] Each of the three individuals is, therefore, committed for trial on Count 2 as well.

Count 4: Unauthorized Possession of a Firearm (s. 92(1))

[38] There certainly was evidence called at this hearing that Wilks had possession of the firearm that he used, allegedly, to shoot Jalal-Din. While the reverse onus provisions in s. 117.11 do not apply directly to s. 92(1), a jury could reasonably infer from all the circumstances that Wilks did not have the requisite licence to allow him to possess it. Similarly, I am satisfied that given the nature of the planned use actually made of the firearm, it would be open to a jury to find that McLennan and Abdo knew both that Wilks had the gun and that he was not lawfully licensed to possess it. While there is no evidence of when or how Wilks acquired the gun, there is sufficient evidence of the continuing offence of possession on Wilks's part and a reasonable inference available that both McLennan and Abdo encouraged or assisted him in committing that offence.

[39] All three accused are ordered to stand trial on Count 4 in the information.

Count 5: Possession of a Loaded Restricted Firearm (s. 95(1))

[40] For the same reasons, a committal for trial on Count 5 is also required in the case of each of the three accused. I note that defence counsel did not make submissions with respect to the particular charge, probably because in the context of the case as a whole, the charge seemed somewhat beside the point. A committal of all three individuals for trial is ordered on Count 5 as well.

Count 6: Discharge Firearm with Intent to Wound (s. 244(1))

[41] The offence charged in Count 6 is clearly an offence included in the offence of "attempting to murder Asher Jalal-Din by discharging a firearm," contrary to s. 239(1) of the Criminal Code.

[42] For the reasons already stated in relation to Count 1, Abdo, McLennan and Wilks are each ordered to stand trial on Count 6.

Count 7: Discharge Firearm with Intent to Endanger Life (s. 244(1))

[43] For exactly the same reason, a committal for trial on the attempted murder charge, as framed in Count 1, necessarily implies that a trial would be warranted with respect to the included offence of discharging a firearm with intent to endanger life. All three accused are committed for trial on Count 7 as well.

Count 8: Assault with a Weapon, to wit: Pepper Spray (s. 267(a))

[44] Given the evidence which could be accepted by a jury that the shooting was a joint enterprise to which all three agreed and in which they all participated, it would be open to the trier to infer that McLennan, the person with the primary grievance against Jalal-Din, used the pepper spray to incapacitate the victim just as Wilks was approaching to shoot him. There would be no obstacle that I can see to a jury reasonably inferring that McLennan's possession and use of the pepper spray was part of the same plan to kill Jalal-Din in which all three knowingly took part. Again, whether the inference is drawn or not is a matter for the jury, but the conclusion that both Abdo and Wilks also aided or abetted McLennan's using the pepper spray to assault the victim is, in the circumstances, one that would be available to the jury, in my view.

[45] The three accused are each ordered to stand trial on Count 8 as well.

Count 9 (Against McLennan Only): Breach of Recognizance, s. 145(3)

[46] Finally, since Mr. Kaldas conceded that McLennan was bound on July 16, 2014, by a "house arrest (with exceptions)" condition of a recognizance, and since there was ample evidence that a jury could accept that McLennan was away from his residence the day of the shooting, driving the Mercedes by himself and then participating in the alleged attempted murder, all in the absence of his surety, McLennan's committal for trial on the charge must be ordered.

Disposition

For the reasons stated above, each of the three individual accused is committed to stand trial on all of the charges on which the Crown has proceeded against him.

Released: June 27, 2016

Signed: "Justice David A. Fairgrieve"