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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

Ontario Court of Justice

Date: 2018-11-27

Court File No.: Toronto 4817 998 17-75004713-01;-02

Between:

Her Majesty the Queen

— AND —

Abdirisaq Ali and Tanade Mohamed

Before: Justice Howard Borenstein

Heard on: October 22, 23, 24, 25, 26, 29, 30, 31 and November 2 and 5, 2018

Reasons for Judgment on Committal released on: November 27, 2018

Counsel

Ms. Anna Tenhouse — counsel for the Crown

Ms. Louise MacNaughton — counsel for the Crown

Mr. Craig Bottomley — counsel for the accused Abdirisaq Ali

Ms. Mayleah Quenneville — counsel for the accused Abdirisaq Ali

Mr. Gabriel Gross-Stein — counsel for the accused Tanade Mohamed

Mr. Craig Zeeh — counsel for the accused Tanade Mohamed

BORENSTEIN, J.:

Facts

[1] Tyler McLean and Zemarai Khan Mohammed's lives ended on October 1, 2017 when they were tragically killed in a senseless act of violence as they were leaving the Rebel nightclub.

[2] Tanade Mohamed is the alleged shooter of both men. Abdirisaq Ali was driving the car from which Mohamed shot the two men before they both fled. At the end of the preliminary hearing, Tanade Mohamed conceded committal on two counts of second-degree murder. Ali contests committal. He submits that he should be committed to trial as an accessory after the fact to murder in relation to the death of Mr. Zemarai Khan Mohammed, and as an accessory after the unlawful discharge of a firearm in relation to the death of Mr. McLean.

[3] The Crown called numerous witnesses and video evidence from in and around the Rebel nightclub. The issue is, in view of all the evidence called, could a reasonable jury properly instructed find that Mr. Ali was a party to the murder of either or both men.

[4] At the end of the preliminary hearing, there is evidence from which a reasonable jury, properly instructed, could infer the following:

1. Mr. McLean worked as a promoter at the Rebel nightclub;

2. He had a private VIP booth on the second floor of the club;

3. Zemarai Khan Mohammed and Tyler McLean were friends, and were in the VIP booth that evening as were others, including three women; MacKenzie Cornall, Holly Abby Rogasky and Rasha Ainnaj;

4. Tanade Mohamed's brother rented a black Dodge Durango SUV a few days before this night;

5. Ali drove himself and Tanade Mohamed in the Durango to the Rebel nightclub, arriving around 1:21 a.m.;

6. Upon their arrival, they used the Rebel's valet parking service, which was being operated by Mr. Babin and Mr. Molyneux;

7. Mohamed exited the passenger side of the Durango and is seen on video, walking briefly to the driver's side and perhaps leaning in the vehicle on the driver's side. The Crown submits that one reasonable inference is that he was hiding a gun on the driver's side of the Durango before entering the club and, further, that Ali, the driver, would have known that;

8. The keys to the Durango were then turned over to the valet;

9. David Babin noticed some loose items in the Durango, including an unrolled cigar, tissue paper in the driver's door handle and other items. He did not see a gun;

10. Both accused lined up to enter the Rebel club. A video shows them being subject to a perfunctory search before entering the club. Nothing was found that prevented them from entering the club.

11. They spent the next hour and a half inside the club. There is no evidence of any encounter between the two accused and the victims inside the club;

12. At 3:05 a.m., both accused exit the club and approached the valet to retrieve the Durango;

13. A brief verbal dispute occurs between the valet, Mr. Babin, and Tanade Mohamed, as Mohamed did not want to pay the $40.00 valet parking fee.

14. Officer Kraft was working a pay duty that night at the Rebel. He noticed the potential issue between Tanade Mohamed and Mr. Babin, and positioned himself nearby for security purposes. The parking fee was paid. Tanade Mohamed is alleged to have said to the valet words to the effect: "You are just a valet. You are a nobody." and "You are a lucky man";

15. The valet went to retrieve the Durango;

16. While awaiting the valet's return, Mr. McLean, Mr. Khan Mohammed, together with Abby Rogasky and MacKenzie Cornall are seen on video walking out of the club toward the parking lot;

17. As Tyler McLean passed the two accused, something very brief was said between them. It lasted only a second. Tanade Mohamed then threw a water bottle at or over the head of Mr. McLean. Mr. McLean turned back toward Tanade Mohamed and the two exchanged a minor push. Mr. McLean swung at Mr. Mohamed but missed. Mr. Ali seems to be trying to hold Tanade Mohamed back. Mr. Khan Mohammed stood between Tanade Mohamed and Mr. McLean. Sergeant Kraft approached and unholstered his Taser and told the women to get the men to leave. McLean and Khan Mohammed left. This entire dispute lasted about 10 seconds;

18. A few minutes later, the valet delivered the Durango. Both accused entered the Durango. Ali, in the driver's seat; Tanade Mohamed is the passenger. Just before getting in, Mohamed first approaches the driver's side before going to the passenger side;

19. Ali drove but did not exit the valet parking lot. Rather, he drove a short distance within the parking lot, driving past Mr. McLean and Mr. Khan Mohammed and their group. Having passed the group, he backed into a parking spot facing forward. This gave him an ability to easily drive out, and gave Tanade Mohamed a view of the approaching group from his window. They remained parked in that fashion for almost two minutes. As the group approached with Mr. Khan Mohammed in the front, there is evidence the passenger window of the Durango opened and a muzzle flash from a fired gun is seen from within the passenger side window. Mr. Khan Mohammed was struck in the head and died instantly;

20. Mr. Tanade Mohamed quickly exited the Durango and fired another shot. There is evidence he had run toward the back of the Durango where Mr. McLean was when he fired the second shot;

21. Tanade Mohamed then quickly got back into the Durango;

22. There is evidence that Mr. McLean ran near the back of the Durango, yelling and grabbing at window. Another shot was fired from inside the Durango likely hitting Mr. McLean in the chest;

23. The Durango immediately began to flee, screeching its tires as it fled;

24. Mr. McLean fell to the ground. He died while being taken by ambulance to the hospital;

25. All three shots were fired within six seconds according to the time stamp on the video.

26. The breakdown of the shots from the video is, as follows:

• 3:11:45 – first shot from within the Durango
• 3:11:48 – second shot from outside the Durango
• 3:11:50 – Tanade Mohamed re-enters the Durango
• 3:11:51 – third shot from within the Durango toward Mr. McLean who is at the back of the Durango
• 3:11:52 – Durango leaves
• 3:11:56 – Mr. McLean falls to the ground;

27. There is evidence from Ms. Rasha Alnaaj that Mr. Khan Mohammed approached the vehicle before the shooting and punched Tanade Mohamed. A jury will have to assess her reliability;

28. GSR was found all around the passenger side of the Durango, including the headrest and armrest. There is no evidence as to whether they examined the driver's side. Although, given the manner in which GSR is disbursed, it would likely be found on the driver's side as well. The reasonable inference on all the evidence is that Tanade Mohamed did all the shooting;

29. The Durango exited the parking lot and fled the scene. A nearby police cruiser saw the Durango and attempted to chase it as it sped up the D.V.P. The Durango managed to outrun and evade capture;

30. The Durango then parked in the underground parking lot of Mr. Ali's brother. He signed in to the register under a false name;

31. Both accused were arrested the next day.

Positions of Crown and Defence

[5] The Crown submits Ali would have known that Mohamed had a gun from the time Mohamed placed it in the car before the valet parked the car; or at least before the shooting, while they were parked and waiting. The Crown submits that Ali's conduct in not exiting the parking lot, driving past the victims, backing into the spot facing forward and then waiting for two minutes knowing that Ali had just had a confrontation and had a gun, together with his conduct after the shootings in fleeing the police, and trying to hide the Durango, leads to one reasonable inference: that he engaged in that conduct for the purpose of helping Mohamed kill both Mr. McLean and Mr. Khan Mohammed, making him a party to the murders of both victims.

[6] The defence submits that the accused should be committed to trial as an accessory after the fact of murder in relation to Mr. Zemarai Khan Mohammed, and accessory after the unlawful discharge of a firearm in relation to Mr. McLean. He submits that it is speculative to think that Ali would have known Mohamed had a gun and intended to kill the victims. Moreover, Ali submits that Ms. Alnaaj's evidence that Mr. Khan Mohammed came up to the Durango and punched Tanade Mohamed before any shooting occurred was an intervening act that Ali could not have anticipated.

Decision

[7] Tanade Mohamed was committed to stand trial on two counts of second-degree murder. The committal was on the basis that there is evidence that he intentionally killed the victims, or intentionally caused them bodily harm knowing that death was likely, and being reckless as to whether death ensued.

[8] The Crown submits that Ali aided Mohamed in committing these crimes and should stand trial as a party to those two counts of murder.

[9] Section 21(1) provides that every one is a party to an offence if they: (a) actually commit the offence or; (b) do or omit to do something for the purpose of aiding any person to commit the offence or; (c) if they abet or encourage the offence.

[10] There can be no doubt that Ali, by his actions, aided Mohamed to commit these offences.

[11] However, to be guilty as a party of the same offence committed by the principal, it is not enough that Ali's actions had the effect of aiding Mohamed. There must be a reasonable inference that he took those actions for the purpose of helping Mohamed commit murder.

[12] Mr. Bottomley submits that, on the whole of the evidence, the accessory provisions of the Criminal Code perfectly encapsulates Ali's alleged involvement.

[13] Section 23(1) provides that "an accessory after the fact is someone who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape".

[14] While I agree that the accessory provisions likely captures Ali's involvement, it is not the only reasonable inference.

[15] At this juncture, all reasonable inferences, even if weak or unlikely to be drawn, are to be resolved in favour of the Crown as long as they are reasonable and not speculative. A preliminary inquiry is not the forum to weigh competing reasonable inferences. It bears repeating that the test for committal at the end of a preliminary hearing is nowhere near the test for conviction after trial.

[16] In my view, despite the very able submissions of Mr. Bottomley, there is a reasonable inference that Ali knew Tanade Mohamed had a gun prior to the shooting, and intended to shoot the two men. Therefore, there is a reasonable inference that he engaged in his actions for the purpose of aiding Tanade Mohamed to do so. It is not a strong inference in my view, nor is it the one likely to be drawn for many of the reasons Mr. Bottomley asserted, but it remains a reasonable one.

[17] Having just witnessed the aggressive encounter with Mr. McLean, Ali, rather than exiting the parking lot when the Durango was returned to him, chose to drive into the parking lot slightly past the soon to be victims and then, park in a manner that allowed for Tanade Mohamed to have a view of the victims as they approached and for a quick exit. Then, they waited, parked in that fashion, for about two minutes. There is a reasonable inference that Ali knew Tanade Mohamed had a gun, at least at the point when they were waiting in the parking lot. This is based on the fact that, while waiting for two minutes and as the victims approached, the passenger window came down and a muzzle flash could be seen. From that, it is reasonable to infer Tanade Mohamed was holding the gun within the car for a period of time, which would be known to Ali.

[18] Rather than leave at that point, he parked and remained. And, after the first shot, Tanade Mohamed exits the car, shoots again, returns to the car and shoots again as Ali is about to flee. Upon the shooting of both men, Ali flees the scene and from the police and then hides the Durango in a visitor's parking spot, signing in with a false name.

[19] Why were they waiting in those circumstances? One inference is they were waiting to do exactly what Tanade Mohamed is alleged to have then done. He certainly did not drive away when the gun came out, or even after the window rolled down and the first shot was fired.

[20] From those facts, a jury could reasonably infer that Ali's actions were done for the purpose of assisting Tanade Mohamed to shoot and kill Mr. Khan Mohammed.

[21] While the facts of each case are different, the decisions of Goldstein, J. in R. v. Bailey, [2017] O.J. No. 1389 (SCJ), and McWatt, J. in R. v. Asfaha, [2012] O.J. No. 231 (SCJ), are somewhat similar and support this analysis.

[22] As for the so called intervening act of the punch, there are many reasons why a jury may reject Ms. Alnaaj's evidence of that punch having occurred, including the fact that it does not seem consistent with the video.

[23] It will be for a jury to decide whether the man who drove the shooter to the scene after the initial confrontation, parked in the manner described, waited for no apparent reason in circumstances where he knew prior to the window rolling down that Tanade Mohamed had a gun, and who did not leave at that point, or after the first shot, but instead drove Tanade Mohamed to safety after the shootings. It will be for a jury to decide if Ali did those things for the purpose of helping Tanade Mohamed commit those offences, or if he did not and was just helping after the fact.

[24] In my view, guilt as a party to murder, while less likely, is a reasonable inference.

[25] And that analysis applies to the killing of both Mr. Khan Mohammed and Mr. McLean. Given that there is a reasonable inference Ali engaged in his actions for the purpose of aiding Tanade Mohamed to commit murder, it is artificial to conclude that he abandoned his intention in the six seconds between the first and last shot. He may have, and there may be other reasons for a jury to have a doubt about Ali being a party to Mr. McLean's murder but, in the end, despite Mr. Bottomley's submissions, Ali's guilt as a party to two counts of murder is a reasonable inference. His guilt or innocence is a reasonable doubt issue and not a committal for trial issue.

[26] Given that I am of the view that Ali should stand trial as a party to the murder of both men, the decision of Nordheimer, J. (as he then was) in R. v. Knott, [2006] O.J. No. 886 (SCJ), has no application.

Released: November 27, 2018

Signed: "Justice H. Borenstein"