CITATION: R. v. Mengistu, 2020 ONCJ 17

DATE: January 10, 2020

Publication Restriction

Pursuant to s. 539(1) of the Criminal Code the evidence taken in the course of this Preliminary Inquiry shall not be published in any document or broadcast or transmitted in any way before the end of the accused’s trial.

ONTARIO COURT OF JUSTICE

College Park - Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

YARED AFEWORK MENGISTU

A. Linds

For the Crown

K. Hetherington

For the Defendant

Heard: August 29, September 3, 4, 5 and 6, and November 15, 2019

REASONS for COMMITTAL

MELVYN GREEN, J.:

A. INTRODUCTION

[1] Not for the first time, Yared Mengistu’s and his wife Abeba Teklamariam’s marriage was in a troubled state in mid-August, 2018. They were living apart. Abeba was staying with her sister, Semenawork (“Sam”) Teklamariam.

[2] On the evening of August 18th, the two sisters and two women friends (Nuhamin Assefa and Beteleham Aligaz) met for drinks at a bar on Danforth Avenue in Toronto. Sam was the “designated driver”. Yared Mengistu made an uninvited visit to the same bar. Bezaye Getu, a male family friend Sam had known before migrating to Canada, joined them later. All five left the bar in the early hours of the 19th. Sam wanted her sister Abeba to accompany her home in her, Sam’s, car. Yared wanted Abeba to join him in his car, which she ultimately did.

[3] Yared then drove east on Danforth, with Abeba in the front passenger seat of his BMW. Sam, accompanied by Nuhamin, Beteleham (“Betty”) and Bezaye, also drove east on Danforth, behind but within sight of Yared’s car. There was a verbal exchange between Yared and Sam as the two cars drove east and, again, as they stopped parallel to each other at a red light.

[4] The two vehicles continued eastbound as the light changed, with the BMW again in the lead. Yared abruptly made a U- or semi-circular turn in the middle of the Danforth, completing his maneuver by T-boning the driver’s side of Sam’s Toyota. He reversed, and again drove his BMW into the driver’s side of Sam’s Toyota as she and her three passengers evacuated the car, seeking cover under and behind neighbouring vehicles. Yared reversed and collided with Sam’s car a third time. He then got out of his BMW. He was carrying what appeared to be a straight metal object with which he smashed several of the windows of Sam’s now empty Toyota. Yared then approached the area where Sam and her three friends were hiding, shouting in their direction. He then hailed a cab heading west on Danforth. He was arrested when he returned to the scene a couple of hours later.

[5] Sam, the three occupants of her car and Abeba all attended the emergency department of a nearby hospital. None experienced life-threatening injuries, although some of the witnesses required treatment and suffered lasting trauma. All five testified at Yared’s preliminary inquiry, each assisted by an Amharic interpreter. Two police officers who attended the scene were also called as Crown witnesses.

[6] Following the inquiry, the Crown seeks the committal to trial of Yared Mengistu (hereafter, Yared or the defendant) on the following 17 charges:

• Dangerous Driving Causing Bodily Harm - (5 counts)

o Semenawork Teklamariam

o Abeba Teklamariam

o Beteleham Aligaz

o Nuhamin Assefa

o Bezaye Getu

• Assault with a Weapon (the car) - (5 counts)

o Same five named complainants

• Attempted Murder - (4 counts)

o Same complainants, but for Abeba Teklamariam

• Utter Threat of Death - (1 count)

o Semenawork Teklamariam

• Possession of a Weapon (the metal object) for a Dangerous Purpose - (1 count)

• Mischief Exceeding $5,000 - (1 count)

[7] The defendant concedes committal with respect to all of the charges proposed by the Crown but for the four counts of attempted murder and the single count of dangerous driving causing bodily harm that names Abeba Teklamariam as a victim.

[8] The contest regarding the latter charge turns on nature of Abeba’s trauma and, in particular, whether they were occasioned by the collision. More fundamental is the question of whether the evidence is legally adequate to support committal for the offences of attempted murder. The narrow focus of this latter inquiry is the sufficiency of the evidence bearing on the requisite mental element for this offence – the specific intent to kill – as assessed with respect to each of the five complainants named in the attempted murder counts for which the Crown seeks committal.

B. THE LAW GOVERNING COMMITTAL

[9] The implications of the evidence led at the defendant’s preliminary inquiry commands an appreciation of the rules governing committal. The legal protocol for committal assessment is well settled. Irrespective of the quality or nature of the evidence, the test for committal is that set out in the venerable case of U.S.A. v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067: “whether or not there is any evidence upon which a reasonable jury properly instructed could [not “would”] return a verdict of guilty.” There is little room for judicial discretion: a judge presiding at a preliminary inquiry “must”, as said in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21, “commit the accused to trial ‘in any case in which there is admissible evidence which could, if it were believed, result in a conviction’: Shephard, at p. 1080”.

[10] An assessment of witness credibility is not part of a presiding justice’s task: R. v. Campbell (1999), 1999 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont. C.A.), at para. 4. Absent manifest unreliability, no witness’s evidence is to be disbelieved or otherwise discarded on this inquiry, and the weighing of testimonial accounts, no matter how internally or externally inconsistent, is left to the ultimate trier of fact – superior court judge or jury, depending on a defendant’s election.

[11] The Shephard standard – generally abbreviated as the “any evidence” or “some evidence” test – applies whether the evidence is direct, circumstantial or both. Where circumstantial, a limited weighing of the evidence is required because of the inferential gap between the evidence and the matter to be established. Put otherwise, there must be a determination by the justice presiding at the preliminary hearing as to whether the circumstantial evidence is reasonably or rationally capable of supporting the incriminatory inferences the Crown invites: R. v. Arcuri, supra, at para. 23. If it does, a committal must follow for the offence or offences charged or. If sought, those arising from the same transaction. On the other hand, the accused must be discharged if “no sufficient case is made out to put the accused on trial”: s. 548(1) of the Criminal Code.

[12] Not infrequently, there is a legitimate dispute as to the permissible scope of the inferences available on a circumstantial evidentiary record. At bottom, the law commands that any reasonably and logically available inference consistent with guilt mandates committal. (See R. v. Munoz (2006), 2006 3269 (ON SC), 205 C.C.C. (3d) 70 (Ont. S.C.), at paras. 23-31.) Even robust benign inferences must yield to committal where a rational inculpatory inference also lies.

[13] In R. v. Jackson, 2016 ONCA 736, at paras. 6-8 and 11 (citations omitted), Doherty J.A. helpfully summarized much of the prevailing jurisprudence respecting the assessment of circumstantial evidence at a preliminary inquiry and the limited discretion vested in the presiding justice:

If the evidence relied on by the Crown is circumstantial, the preliminary inquiry judge must weigh the evidence in a limited sense to determine whether the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence:

In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown:

If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.

[14] Incriminatory inference-drawing is not infinitely elastic. While the line is sometimes obscure, the principle is well recognized: inferences that neither rationally or logically flow from the evidence or which are merely speculative cannot ground committal. (See R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209; R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont. C.A.), at para. 41.) Further, the question of sufficiency of evidence must be assessed by reference to the ultimate burden on the Crown to prove the case beyond reasonable doubt: R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 53; R. v. Turner (2012), 2012 ONCA 570, 292 C.C.C. (3d) 69, at para. 16.

[15] I apply these legal instructions to the case at bar after a skeletal canvass of additionally relevant facets of the evidentiary record. This review focuses on evidence probative of the matters at issue at this hearing: the cause of Abeba’s injuries, if any, and, of more consequential concern, the defendant’s intention at the time his BMW collided with the second vehicle.

C. EVIDENCE

[16] The evidence of the five narrative witnesses as to the events that occurred during the several hours preceding the collisions on the Danforth is not entirely consistent. There is broad concurrence as to the factual overview set out earlier in these Reasons, but there are also differences, sometimes significant, as to details, timing, sequence, and the content and tone of verbal exchanges. Apart from Sam (who nursed a beer through the evening), the narrative witnesses all had several to many drinks, and some (Abeba in particular) claimed to have forgotten portions of what transpired. There is a testimonial foundation for the evidentiary sketch that follows. In fairness, there is also inter-witness variability as to salient points, although not such as to prevent otherwise warranted committals on application of the appropriate legal principles.

[17] Abeba and Yared had a young child in common. Abeba and her child had been staying with her older sister Sam for at least several days before August 18th. This was not the first time marital discord had caused her to leave the home she shared with Yared. Abeba testified she was only “visiting” her sister; while her relationship with Yared was “shaky”, they were undertaking pastoral counseling. The other women, including Sam, expressed far less sanguine views as to the status of Abeba’s and Yared’s marriage.

[18] Sam, Abeba, Nuhamin and Beteleham (“Betty”) convened at the Meda Bar on Danforth for a “ladies’ night”. Abeba had been receiving text messages from Yared but she, like the others, did not expect Yared when he showed up at the bar. Abeba effectively made room for him at their table. She and Yared soon repaired to the sidewalk in front of the bar left to have a more private conversation. Sam said they were just “talking”, when she went out to check on them. Nuhamin joined them for a cigarette, but Abeba told her it was none of her business and not to interfere when she acted disrespectfully towards Yared.

[19] According to Sam, Yared was “normal” when he and Abeba returned to the bar after 15 or minutes. Yared then pressed Sam to join him outside. She reluctantly agreed. Yared did not threaten Sam. She was a number of years older than Abeba and Yared, yet he spoke to her as a peer rather than an elder. He asked Sam is she thought him a “bad partner” for her sister. Sam allowed that she considered him manipulative or controlling. Yared objected to Sam providing shelter or a refuge to her sister whenever she, Abeba, and he had an argument. He invited Sam to a second bar, Friendship, located very close to Meda. They bumped into Bezaye at the new bar. Sam invited him to join her and the others at Meda, to which all three soon returned.

[20] Other than Abeba, the witnesses generally agree that on leaving the bar there was dispute as to whether Abeba was to then accompany her sister or her husband. Sam wanted Abeba to return to her, Sam’s, home, as they had earlier arranged and where Abeba’s young child was being babysat. Yared wanted Abeba to join him. Although their individual accounts differ, sometimes widely, all the narrative witnesses but for Abeba recall her at some point being in the back seat of Sam’s Toyota and then transferring to Yared’s car.

[21] As earlier noted, Yared drove east on Danforth. Sam did the same. Bezaye says he told her not to, but Sam, concerned for her sister, followed Yared’s BMW. At some point, Sam, in the curb lane, rolled down her window and spoke with Yared as they drove east in parallel formation. Sam recalls telling Yared that her sister Abeba was staying with her that night, that she doesn’t want to go with him, and that he can’t force her to accompany him. Yared, in reply, told Sam that Abeba was his wife and he can do whatever he wants.

[22] The two cars stopped next to each other at a red light. Sam concedes may not have perfect recall of what Yared said as they waited for the light to change, but she remembers him asking her if her home was “a hiding place” that Abeba goes to “every time we have trouble” Yared, in a “normal speaking voice”, then said, in Amharic, “I will not have any life unless I get rid of you”. In English, he also said, “You don’t know me”. Sam explained that Yared’s Amharic words are a cultural figure of speech that can either convey a threat to kill someone or a warning to keep one’s distance. At the time the words were spoken, Sam did not take them seriously. She assumed Yared was simply expressing, again, his anger at what he saw as her interference in his domestic affairs. After the collision, Sam was convinced that she had misread his intention and that Yared meant to convey a lethal threat when he told her that he would “have no life unless [he] got rid of” her.

[23] Yared sped ahead of Sam’s car as the light changed. She followed slowly until Yared’s abrupt U-turn and collision with her car. The front end of the BMW struck the driver’s side of Sam’s Toyota, between the front and back doors. Sam immediately shifted her transmission to “park”, but the repeated collisions pushed the Toyota south, off Danforth and slightly into a smaller intersecting street. Sam and her passengers were either ejected from her car as they tried to escape or got out on their own steam as quickly as they could.

[24] All four hid behind cars at a corner garage, about 30 feet distance. From there, several saw Yared smash the Toyota’s windows with what appeared to be a metal object, like a tire iron or a crowbar. Yared approached the area where the four occupants of Sam’s car took refuge. He was shouting “Where is she?”, “They don’t know me”, “Can’t you see what kind of person I am now”. Several of those hiding testified that they feared for their lives.

[25] Yared did not physically confront or pursue Sam or the other three. He hailed a taxi and headed west on Danforth.

[26] Abeba’s account, as earlier indicated, was somewhat distinct from that tendered through her sister and friends. She agreed that the original plan was for her to go home with her sister. However, she had no recall of ever being in Sam’s car after leaving the bar. She didn’t know, she said, how she ended up in the front seat of Yared’s BMW. Her next memory was of the impact of what she recalled as a single collision. She felt immediate pain in her legs and then in her neck. In cross-examination, she described the neck and back pain as no different than the chronic pain she experienced, and continues to experience, since the birth of her child. Abeba denied being prescribed any drugs or visiting a doctor as a result of the collision. She could not recall if her head hit the dashboard of the BMW. Nor could she recall what she told the medical personnel at the hospital. Although she consented to the release of her medical records, she did not adopt the nurse’s notes of her purported communications during her hospital attendance on August 19th.

[27] No evidence was led of Yared assaulting or directly threatening Sam, Abeba or any of their bar companions before August 19th or while at the bar that evening. Unlike the others, Nuhamin testified that Yared appeared rude and angry while at Meda and that his demeanour frightened her. And Bezaye testified that, as they left Meda, Sam asked him, to stay with them (the women) as they feared Yared.

[28] The Toyota was written off after the incident.

D. ANALYSIS

(a) Introduction

[29] Committal is conceded respecting all but the four counts of attempted murder and that alleging that Abeba suffered bodily harm as a result of the defendant’s dangerous driving. I first address the charge of dangerous driving. I then turn to the attempt murder allegations in two stages: first the count naming Semenawork Teklamariam (Sam) and, then, if compendiously, the attempt murder counts involving the three other named complainants. The evidence suggests that the defendant’s animus is primarily, if not exclusively, directed at Sam. A fortiori, the defendant must be discharged of the three parallel charges of attempt murder if discharged on the count naming Sam. Even if the latter count warrants committal, the three other attempted murder counts cannot attract committal unless properly captured by the doctrine of “concurrent intent”.

(b) Dangerous Driving Causing Bodily Harm: Abeba Teklamariam

[30] The defendant’s manner of driving is not at issue. By any measure, and as statutorily defined, “having regard to all of the circumstances [it was] dangerous to the public”. There is also unchallenged evidence that “as a result” of the defendant’s driving, all the named victims of the prohibited manner of driving, other than Abeba Teklamariam, suffered bodily harm. The narrow issue is not so much whether a trier could rationally conclude that Abeba suffered a similar consequence but, rather, whether any continuing pain she experienced in the wake of the collision was a “result” of the defendant’s dangerous driving. In my view, a properly instructed trier could not reach this determination on the evidence tendered on this preliminary inquiry.

[31] The concept of “bodily harm” has attracted rich jurisprudential attention. As defined in s. 2 of the Criminal Code, bodily harm “means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. Abeba did describe experiencing painful sensations on the occurrence of the collision. While her neck and back pain endured, she testified that she had experienced this same trauma since the birth of her child a few years earlier, and, in effect, that the collision made no qualitative difference in the interference with her “health or comfort”. On this record, it is not open to a trier to conclude otherwise.

(c) Attempted Murder: Semenawork Teklamariam

[32] Proof of attempted murder is primarily focused on whether an accused has the requisite mental state or, in the legal Latinism, mens rea. As put by the Supreme Court in the germinal case of The Queen v. Ancio, 1984 69 (SCC), [1984] 1 S.C.R. 225, at p. 249, “the mens rea for an attempted murder cannot be less than the specific intent to kill”. The inquiry is not into an accused’s method but whether, “by any means”, as said in the charging provision, he did anything to cause the death of another human being having formed the specific intention to do so.

[33] In my view, a reasonable trier could conclude that the defendant intended to kill his sister-in-law at the moment he rammed his car into the vehicle she was driving. I do not intend to rehearse the evidence I have earlier canvassed. Suffice it to say that the defendant’s family discord, his expressions of resentment regarding Sam’s interference in his relationship with his wife, the lethal nature (on an available reading) of his threats to Sam, the direction, force and repetition of the physical battering that almost immediately followed these threats, and the menacing nature of the defendant’s after-the-fact conduct, all considered cumulatively, afford a sufficient evidentiary basis for a trier to infer that the defendant intended to end Sam’s life when he deliberately collided with her vehicle.

[34] It is undoubtedly the case the at least some of the most prejudicial primary facts are ambiguous and may be construed as insufficiently reliable to support a conviction for this offence on the ultimate criminal standard. The skein of evidence may also admit to more a benign inference than an intention to kill Semenawork Teklamariam. These alternative readings are available, but only to the trier charged with determining the defendant’s fate after his arraignment at trial. Whether or not the more likely alternative, I find that it is also open to a trier to conclude, instead, that the defendant intended to kill his sister-in-law when he deliberately T-boned her car.

(c) Attempted Murder: the three named complainants other than Semenawork Teklamariam

[35] The common law doctrine of transferred intent does not apply to attempted murder: R. v. Gordon (2009), 2009 ONCA 170, 241 C.C.C. (3d) 388 (Ont. C.A.); leave refd. 243 C.C.C. (3d) vi. Crown counsel invokes, instead, the doctrine of concurrent intent.

[36] R. v. Marshall, [1986] N.S.J. No. 90 (C.A.) likely represents the most expansive application of this doctrine. The appellant, Marshall, was ejected from a Nova Scotia bar. Enraged, he told the bouncer he’d be back to “blow you away”. Marshall soon returned and began firing shots from a .303 calibre rifle through the glass doors of the lounge, injuring two of the patrons. He was convicted of the attempted murder of the two injured patrons and the bouncer. With all due respect, I find the appeal court’s reasoning neither clear nor persuasive. As summarized in the accompanying headnote, “The accused had the necessary mens rea since the specific intent to kill was to be directed to killing somebody and not any particular person”. I understand the proposition if this means that Marshall was properly convicted because he formed the intention to kill anyone in the bar he could kill, although I find no basis for drawing this inference on my reading of the Court’s review of the evidence – nor in the record before me as regards the passengers in the Toyota. Any other construction of the Court’s rationale, as set out in the Marshall headnote, appears to dilute the standard fixed in Ancio by introducing an element of recklessness into the assessment of the requisite mental state.

[37] Returning to the case at bar, there is no evidence that the defendant expressed or demonstrated animus to anyone other than Semenawork Teklamariam. Nor were there any circumstances, historical or immediate, that suggested the existence of any substantial friction between the defendant and anyone other than his sister-in-law. In these circumstances, I cannot find that a reasonable and properly instructed trier could conclude that the defendant’s intention to kill, if crystalized, was directed to anyone other than Sam.

E. CONCLUSION

[38] For the reasons just recited, the defendant will proceed to trial on all the counts upon which the Crown seeks committal but for that of dangerous driving causing bodily harm to Abeba Teklamariam and the three proposed charges of attempted murder involving named complainants other than Semenawork Teklamariam.

[39] I have endeavoured not to arrogate to myself the function assigned to the ultimate trier. Honouring this distinction, I am satisfied that a reasonable and properly instructed jury, acting on the evidence before me, could convict the defendant of the attempted murder of Semenawork Teklamariam.

[40] Although of small comfort to the defendant, I add only that, in my view, a competent jury acting on the same evidence would not necessarily reach this result. That said, a latitude for reasonable doubt does not negative an otherwise justified committal to trial. While facially inconsistent, these propositions simply reflect the difference between a trial and a preliminary inquiry and, in particular, the differing standards of persuasion that apply to each.

Released on January 10, 2020

Justice Melvyn Green