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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

Date: October 26, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Saleh Osman and Rahiem Green

Before: Justice M. Speyer

Heard on: July 18, 19, 20, 21, 25, 26, 27, 28 and August 9, 10, 11, 15, 17, 2016

Oral Reasons for Judgment delivered on: October 12, 2016

Reasons for Judgment released on: October 26, 2016

Counsel:

• D. Emami and S. Lee — counsel for the Crown
• S. Shoniker — counsel for the accused Saleh Osman
• S. Stauffer — counsel for the accused Rahiem Green

Judgment

M. SPEYER J.:

[1] On the evening of July 12, 2015, the deceased, Trey Theriault, and his friends Jerome Mayers and Isaiah Gardiner were engaged in a physical altercation with the accused Saleh Osman and Raheem Green. As a result of this altercation, Trey Theriault received numerous stab wounds to his body, two of which ultimately caused his death. Mr. Osman and Mr. Green are accused of the second degree murder of Theriault. A preliminary hearing was held before me to determine if there is sufficient evidence to commit either accused to stand trial as charged.

[2] For the purpose of the preliminary hearing, the two accused admit they were present and participated in a physical fight with the deceased and his friends. However, they submit that there is insufficient evidence to establish that they had the requisite intent to kill Trey Theriault. Their counsel argue that, at best, the evidence supports committal for trial on a charge of manslaughter.

Summary of the Relevant Evidence

[3] The evidence presented at the preliminary hearing establishes that Trey Theriault and Raheem Green had a dispute about whether Theriault owed Green $40 for marijuana. Evidence from Isaiah Gardiner, Jerome Mayers and text messages between Theriault and Green establish that the two had agreed to meet for the purpose of resolving the dispute. From the tone and language of the text messages, it can be inferred that the dispute was to be settled by a physical fight. This was confirmed by Gardiner and Mayers. Marshall Wray, Gardiner and Mayers testified they were all good friends of the deceased, but acknowledged that he had a temper and was inclined to use violence to settle matters and gain street respect.

[4] Mayers, Theriault and his girlfriend, Nicole Cane-Baverstock shared an apartment. Theriault had access to Mayers' belongings in the apartment, including a distinctive knife with a green and white handle that was found at the crime scene.

[5] Mayers and Gardiner testified that they accompanied Theriault to the rendezvous to "have his back". Mayers testified that before he left their apartment, he put one knife and a small baseball bat in his knapsack for protection. He testified he did not tell Theriault that he had taken these weapons and to his knowledge Theriault did not bring a weapon to the fight. Gardiner testified that he did not bring any weapon to the fight and to his knowledge, neither did Theriault. Gardiner testified that Mayers had two knives and a baseball bat.

[6] Video from surveillance cameras establishes that Theriault, Gardiner and Mayers arrived at a plaza located at 3148 Kingston Road at about 10:16 p.m. They walked east towards a residential complex located at 3190 Kingston Road. At about the same time, Osman and Green are observed on video walking together from the housing complex towards the plaza. Mayer and Gardiner testified that Theriault was angry and called Green on a cell phone as they walked through the parking lot of the plaza.

[7] Gardiner testified that the two groups met in the grassy area east of the plaza, near a TTC bus shelter. At this point he did not see any weapons in the hands of either Green or Osman. He testified that Theriault and Green immediately started exchanging punches, with Theriault throwing the first punch. Theriault was a good fighter and it appeared to Gardiner that he was winning the fight.

[8] According to Gardiner, Osman pulled out a knife and lunged toward him and Mayers to keep them away from Theriault and Green, who were fighting behind him by the fence. Gardiner took a few steps back to get away from Osman and tripped on the grass. At this point, he saw Mayers with two knives in his hand moving towards Osman. Gardiner described Mayers and Osman doing a "dance" with the knives but they did not come into contact with each other. Theriault and Green then moved away from the fence toward Osman and Mayers. At this point, they were within arm's reach of each other; with Gardiner a few paces back from the group. Gardiner saw Theriault raise his hand to punch Green and saw Osman swing at Theriault with a knife, stabbing him once in the right hand. Gardiner observed that Mayers did not have any knives in his hand, and assumed he had dropped them in the grass.

[9] Mr. Gardiner testified that the fight ended after about a minute. Green and Osman ran away towards the housing complex, with Green yelling at Theriault, "You're dead". Gardiner wrapped Mr. Theriault's hand and they both walked to Marshall Wray's house. Dr. Mr. Theriault was bleeding heavily from his right hand and from three puncture wounds to his torso.

[10] Mr. Mayers testified that he was present at the fight but did not participate in any way. He denied removing any weapon from his back pack. Mr. Mayers did not identify either of the accused. However, from other evidence, I am satisfied that the person he referred to as Person 1, was Raheem Green, and the person he referred to as Person 2 was Saleh Osman. Mayers testified that when he first saw Green and Osman, they were both armed with a knife. He testified that Green advanced on Theriault with the knife and Theriault was able to dodge it. He testified that Theriault knocked the knife away from Green and the two fought each other. Mr. Mayers testified that as Theriault and Green were fighting; Osman ran up to Theriault and stabbed him in the back. When Isaiah Gardiner moved in to separate the fighters, Green and Osman ran away, with Green yelling, to Theriault "you're dead Bro".

[11] When police investigated this incident, they located a bloody knife in the backyard of 199 Phyllis Avenue, which is located within a short distance of the accuseds' residences. This knife has a distinctive green and white handle. Theriault's DNA was found on this knife. Police also found two leather knife sheaths in the grass in the area of the fight. A small amount of Mr. Theriault's DNA was found on one of the sheaths.

[12] Mr. Mayer testified that knife located in the yard of 199 Phyllis Avenue is similar to the green and white handled knife he had put in his knapsack before leaving his apartment. Mayers testified that the knife sheath with Theriault's DNA also belonged to him but he denied putting that item in his backpack that night. He testified he had not seen the knife sheath for some time. Constable Ryan testified that she searched Mayer's knapsack after the incident and found an 8 inch kitchen knife and a small bat.

[13] Video surveillance evidence establishes that the encounter between the groups was very quick. Theriault, Gardiner and Mayers are seen on video walking towards 3190 Kingston Road at 10:16 p.m. and are seen returning three minutes later at 10:19 p.m. Green and Osman are seen leaving the area and returning to the housing complex at the same time.

[14] Police were called at 10:21 p.m. and arrived on the scene very quickly. Osman was arrested at 11:01 p.m. as he came from the rear yard of unit 28. Green was arrested at that unit at 11:15 p.m.

[15] Trey Theriault sustained a total of 8 stab wounds. He had five wounds to his torso, two in the front and three in the back. The wound to his upper left chest perforated his lung. In addition, he had two stab wounds to his left arm and one to his right hand. The pathologist who conducted the post mortem examination, Dr. Michael Pickup, was of the opinion that Mr. Theriault bled to death. He testified that the stab wounds to Theriault's upper chest and left arm were fatal. The wound to the right hand was defensive in nature. The other wounds were relatively superficial and did not contribute to Mr. Theriault's death.

Theory of the Crown

[16] The Crown's theory is that the accused came armed with knives knowing there was going to be a fight. Theriault was not armed. Mayers was armed with at least one knife: the green and white handled knife that was later located at the back of 199 Phyllis Ave. The fact that Theriault's blood was found on this knife suggests that this was one of the knives used to stab Theriault. The Crown's theory is that in the confusion of the fight, Mayers dropped this knife and it was used by either Green or Osman to stab Theriault. The deceased sustained stab wounds to his front and back, suggesting two attackers and possibly two different knives. Evidence suggests that Osman may have discarded this knife in the yard of 199 Phyllis Ave. as he was arrested in the pathway directly behind that house shortly after the fight.

Defence Theory

[17] Mr. Shoniker for Osman argues that there is insufficient evidence to commit the accused to trial on the charge of second degree murder. He argues that there is a considerable gap in the evidence as to how the deceased came to sustain 8 wounds. The only direct evidence is from Gardiner who saw Osman stab Theriault in the hand as he was about to punch Green, suggesting he was acting in defence of Green. Mr. Shoniker points to the inconsistencies between Mayers' and Gardiner's evidence, and the evidence seized by police from the crime scene. He argues that Mayers' evidence is so incredible, that a properly instructed jury could not rely upon it to convict the accused. He argues that the remaining evidence supports a conviction for manslaughter.

[18] Defence counsel Mr. Stauffer for Green argues that no reasonable jury would accept Mayer's evidence. He submits that the only reasonable inference from Gardiner's evidence is that Mayers and Theriault came to the fight armed with at least two knives. He relies on Gardiner's evidence that Theriault was winning the fight against Green. A reasonable inference is that Green got a hold of one of those knives and used it to protect himself against Theriault's attack. At most, a properly instructed jury could return a verdict of guilty of only manslaughter.

Test for Committal to Stand Trial

[19] It is not the role of this court to come to any factual conclusions about how Trey Theriault came to sustain 8 stab wounds, or what was in the mind of the accused during the altercation. Rather, the role of this court is to apply the test for committal as set out in United States of America v. Sheppard (1977), 1 S.C.R. 1, 30 C.C.C. (2d) 424 (S.C.C.) and refined in R. v. Arcuri 2001 SCC 54, [2001] 203 D.L.R. (4th) 20 (S.C.C.), which is to determine whether or not there is any admissible evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty of second degree murder.

[20] The test is not a particularly onerous one and a scintilla of evidence on each of the essential elements of an alleged offence may prove sufficient to meet the Sheppard test: see R. v. Skogman & the Queen (1984), 13 C.C.C. (3d) 161 (S.C.C.) and R. v. Olubowale [2001] O.J. No. 961 (Ont. C.A.).

[21] In Arcuri, McLaughlin, C.J. at paragraphs 29-30 outlines the task of the preliminary inquiry judge when the Crown seeks a committal based on circumstantial evidence:

…where the Crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury, properly instructed could return a verdict of guilty.

…the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never required consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[22] The standard of sufficiency in s. 548(1) of the Criminal Code is to be applied to the total and cumulative effect of the evidence, both direct and circumstantial. If an inference of guilt could be found on the evidence, the accused must be ordered to stand trial: R. v. Arcuri, supra, at 35-36.

[23] Once the Crown has established an evidentiary foundation on each of the essential elements of the offence from which an inference of guilt can be found, it would be a jurisdictional error for a court to prefer an inference in favour of the defence over a competing inference in favour of the Crown. Only inferences that favour the Crown are to be considered in the limited weighing of evidence on a preliminary inquiry. The court must only assess whether the inference sought to be drawn from the circumstantial evidence is reasonable. See: R. v. Coke [1996] O.J. No. 808 (Gen. Div.); R. v. Magno, [2006] O.J. 2590 (O.C.A.) at paragraph 16 and R. v. Sazant [2004] S.C.J. No. 77 (S.C.C.).

[24] The process of inference drawing was described by Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 209 as follows:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically 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.

[25] Defence counsel submit that the law with respect to the role of the preliminary hearing judge was changed by the Supreme Court of Canada's decision in United States of America v. Ferras, 2006 SCC 33. At paragraph 40 of that decision, Chief Justice McLaughlin compared the test for sufficiency of evidence at an extradition hearing to the test for committal to trial at a preliminary hearing by stating:

"…I take it as axiomatic that a person could not be committed for trial for an offence in Canada if the evidence was so manifestly unreliable that it would be unsafe to rest a verdict upon it. It follows that if a judge on an extradition hearing concludes that the evidence is so unreliable, the judge should not order extradition under s. 29(1) [of the Extradition Act]"

[26] Mr. Shoniker relies on this passage to argue that it is within the jurisdiction of a preliminary hearing justice to weigh the reliability of evidence and refuse to commit to trial on the basis of evidence that is patently unreliable. He argues that Jerome Mayers is such a patently unreliable witness that a properly instructed jury could not base a verdict upon it, and thus should be rejected by this court.

[27] I do not accept that the Ferras decision changed the test for committal for trial at a preliminary hearing. At issue in that case was whether provisions of the Extradition Act infringe on s. 7 of the Canadian Charter of Rights and Freedoms. The Court held that a fair extradition hearing that accords with s. 7 of the Charter requires that the extradition judge must be able to decline to commit on evidence that is unavailable for trial or manifestly unreliable. The Court concluded that to deny an extradition judge's discretion to refuse committal for reasons of insufficient evidence would violate a person's right to a judicial hearing by an independent and impartial magistrate — a right implicit in s. 7 of the Charter where liberty is at stake (see para 49).

[28] However, the Court was also careful to distinguish between the role of a judge at an extradition hearing and that of a judge at a preliminary hearing. In discussing the role of the extradition judge, the court held at para. 48:

It is important as well to note the differences between extradition hearings and domestic preliminary inquiries. Both are pre-trial screening devices and both use the same test of sufficiency of evidence for committal: whether evidence exists upon which a reasonable jury, properly instructed, could return a verdict of guilty: Shephard. Previously, the Extradition Act cemented the analogy between the two proceedings by directing that an extradition judge "hear the case, in the same manner, as nearly as may be, as if the fugitive was brought before a justice of the peace, charged with an indictable offence committed in Canada": Extradition Act, R.S.C. 1985, c. E-23, s. 13. The new Act, however, does not maintain this close parallel in proceedings. Section 24(2) of the Act states: "For the purposes of the hearing, the judge has, subject to this Act, the powers of a justice under Part XVIII of the Criminal Code, with any modifications that the circumstances require." This grants the extradition judge the same powers as a preliminary inquiry judge, but requires the judge to exercise those powers in a manner appropriate to the extradition context. The judge no longer follows "as nearly as may be" the procedure of a preliminary inquiry. A second difference comes from the different rules for admitting evidence. Evidence is admitted on a preliminary inquiry according to domestic rules of evidence, with all the inherent guarantees of threshold reliability that those rules entail. In contrast, evidence adduced on extradition may lack the threshold guarantees of reliability afforded by Canadian rules of evidence. A third difference comes from the ability of extradition judges to grant Charter remedies. These differences make it inappropriate to equate the task of the extradition judge with the task of a judge on a preliminary inquiry.

[29] Accordingly, I do not agree with counsel's submission that the law with respect to the test for committal at a preliminary hearing has been changed. Contrary to counsel's suggestion, I do not have the jurisdiction reject the testimony of Jerome Mayers, even if I am troubled by it. It is the role of the trier of fact to assess this testimony and determine what if any of it to accept.

Essential Elements of Second Degree Murder

[30] Section 229 of the Criminal Code sets out essential elements of the offence of murder:

229. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

Did the Accused Cause the Death of Theriault?

[31] On all of the evidence before me, I am satisfied that there is some evidence upon which a properly instructed jury could find that the accused Green and Osman caused the death of Trey Theriault. There is evidence that the accused were in a fight with the deceased. During this altercation, Theriault suffered stab wounds to his front and back. A reasonable inference from the location of the wounds is that they were caused by two people. Mayers and Gardiner were Theriault's friends and were with him to protect him. There is no evidence that they caused these wounds.

[32] Mayers testified that both Green and Osman were armed with knives at the start of the fight, while Gardiner's testified that only Osman was armed with a knife. Either way, a reasonable inference from the evidence is that Green and Osman, acting in concert, stabbed Theriault either with their own knives or with the one that was brought there by Mayers. It is not the role of this court to determine exactly how each of the accused participated in the death of Theriault and whose knife was used to inflict the injuries. This is an issue to be resolved by a trier of fact upon an evaluation of all of the evidence.

Was the Act of Stabbing the Deceased an Unlawful Act?

[33] There is evidence that the accused were committing an unlawful act when they stabbed Trey Theriault. There is evidence from Gardiner, Mayer and the text messages between Green and Theriault that the two men had arranged to meet for the purpose of engaging in a fight. The evidence of Mayers is that Green and Osman came to the fight each armed with a knife. The evidence from both Mayers and Gardiner is that Theriault was not armed with a weapon during the fight. In these circumstances, a reasonable inference is that the accused were not justified in using force against Theriault and were thereby committing an unlawful act.

Did the Accused Intend to Cause Theriault's Death, or Cause Him Bodily Harm That They Knew Was of Such a Nature That Death Was Likely?

[34] There is no direct evidence of what was in the mind of either accused at the time they stabbed the deceased. However, a trier of fact can infer that a person intends the natural consequences of his or her actions. In the case before me, there is evidence upon which a jury could find that the Green and Osman stabbed Theriault eight times, either as principals acting in concert or as parties aiding and abetting the other. Five of the stab wounds are located on the deceased's torso, where vital organs are located. From the number of stab wounds and where they were located, it is reasonable to infer that Green and Osman intended to cause Theriault's death or intended to cause him such bodily harm that they knew death was the likely result.

Conclusion

[35] On all of the evidence before me there is sufficient evidence against each accused on each element of the offence of second degree murder as set out in s. 229 (a)(i) and (ii). Accordingly, it is not necessary for the court to consider whether the accused could also be committed to stand trial on the basis of s. 229 (c).

Released: October 26, 2016

Signed: "Justice M. Speyer"