ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11/50000200/0000
DATE: 20120123

BETWEEN:

HER MAJESTY THE QUEEN – and – AWET ASFAHA and CHRISTOPHER SHERIFFE Respondents

Laura Bird, Stephanie Henderson , for the Crown

Tanya Thompson , for the Respondent, Asfaha Kristin Bailey , for the Respondent, Sheriffe

HEARD: January 12, 2012

McWatt J.

Ruling ON CROWN’S APPLICATION FOR CERTIORARI

[ 1 ] The Crown applies for an order in the nature of certiorari with mandamus in aid to quash the order of Mr. Justice French made on March 18, 2011 at the conclusion of a Preliminary Inquiry.

[ 2 ] The Respondents were charged with the first degree murder of Bishen Golaub in Toronto on August 16, 2009. Their preliminary hearing began on November 29, 2010 and the evidence was completed December 22, 2010. On March 18, 2011, the Respondents were discharged of first degree murder.

[ 3 ] Mr. Asfaha was committed to stand trial on second degree murder. Mr. Sheriffe was committed to stand trial on the charge of accessory after the fact.

The Issue

[ 4 ] The Crown alleges that the learned preliminary inquiry judge exceeded his jurisdiction by failing to consider the evidence as a whole as is required by s. 548(1) (b) of the Criminal Code ; that he inappropriately weighed the evidence and engaged in fact finding which is reserved for the trial judge or a jury; that he preferred inferences favourable to the accused over inferences favourable to the Crown, and that he engaged in speculation.

[ 5 ] The Crown asks for an order remitting the matter back to the prelimianry inquiry justice with a direction that he commit the Respondents on the charge of first degree murder.

[ 6 ] The application is granted for the following reasons.

The Facts

[ 7 ] The facts as set out in the Crown’s factum are not in dispute. They have been expanded on by Mr. Sheriffe and I have taken those facts into consideration as well.

[ 8 ] On August 16, 2009 at about 1:48 p.m., 34 year old Bishen Golaub drove to 23 Mount Olive Drive to visit a friend. Mr. Golaub pulled his vehicle to the curb outside the residence and exited, leaving the car running. He met his friend at a gate outside the residence and while speaking to her, was shot three times in the back. There was no prior altercation or conversation with the shooter who the judge found was Mr. Asfaha.

[ 9 ] Prior to the shooting, family members at a barbeque saw Mr. Asfaha. He was described as a black male wearing a grey hoodie and openly smoking a marijuana cigarette walking toward the area of the murder.

[ 10 ] During the shooting, a neighbor saw Mr. Asfaha firing the gun backwards while running from where the deceased was killed. She called 911 and gave a description of him – including his grey hoodie which was covering his head.

[ 11 ] Immediately after the murder, the same family who saw Mr. Asfaha approaching the murder scene, saw him run back from it, carrying a gun in his hand.

[ 12 ] Another witness, Narjit Singh, heard gun shots and saw Mr. Asfaha running to a Mazda Protégé. He described him as a black male with a grey hooded sweatshirt, carrying a gun in his hand. The Respondent got into the passenger side of the vehicle (later identified as being owned and driven at the time by Mr. Sheriffe). Mr. Singh believed that the car was running, but he also testified that it may not have been running, but only had its electrical components on. There is some evidence the driver’s side window was open.

[ 13 ] The vehicle driven by Mr. Sheriffe is alleged to have taken off from the point that Mr. Asfaha entered it and sped away, failing to stop at a stop sign.

[ 14 ] Police traced the vehicle to Mr. Sheriffe’s address from a partial licence plate number observed by Mr. Singh. Later, at 4:33 p.m., police observed the vehicle pull into Mr. Sheriffe’s driveway. A lone black male, alleged to be Mr. Sherriffe, exited and went into the house carrying a grey or white sweater or hoodie. At 9:04 p.m. the same day, the same male exited the home, entered the vehicle and met Mr. Asfaha. They re-entered the vehicle – Mr. Sheriffe driving and Mr. Asfaha as a passenger. They were then arrested by police.

[ 15 ] After being arrested and cautioned, and asked if they wished to say anything, Mr. Sheriffe responded, “I swear on my life. I didn’t do it, I just came here to drop my friend off and leave. I didn’t shoot anyone.” Prior to this utterance, there had been no mention how the deceased had been killed.

[ 16 ] The next day, a search warrant was issued for Mr. Sheriffe’s home and a grey hoodie was found in his bedroom. That hoodie and a T-shirt seized from Mr. Asfaha were found to have gunshot residue.

[ 17 ] Police seized a surveillance video from the Travelodge Hotel at 925 Dixon Road for the hours before the murder. It showed Mr. Sheriffe’s vehicle with Mr. Asfaha in the rear passenger side of the vehicle – his hand outside the window placed on the roof. Police later retrieved his fingerprints on that portion of the car. He was seen in the video wearing a grey patterned hoodie.

[ 18 ] Two females were seen with the Respondents during the course of two videos from 3:16 a.m. until 1:41:50 p.m. when they were dropped off at an apartment complex in Etobicoke. The two females confirmed that when they were dropped off before the shooting, Mr. Sheriffe was in the driver’s seat and Mr. Asfaha got out of the back of the car and took a seat in the front passenger seat.

Analysis

[ 19 ] The Crown’s theory is that Mr. Asfaha was the shooter and is guilty of first degree murder as the principal party. Mr. Sheriffe, operating the motor vehicle, is a party to first degree murder pursuant to Section 21(1) (b) of the Criminal Code as an aider or abettor. The evidence in support of this theory is dependent on inferences to be drawn from what is mostly circumstantial evidence.

[ 20 ] The preliminary inquiry judge found the following from the evidence before him:

(i) That both accused were in the immediate vicinity at the time of the murder;

(ii) That Mr. Sheriffe was parked in his family Mazda at the time of the shooting at the intersection nearest to the shooting;

(iii) Gunshot residue was found on the clothing of both accused;

(iv) One way GSR could end up on clothing was if a gun was fired by the wearer of the clothes;

(v) The appearance of Mr. Asfaha was consistent with descriptions of physical features and clothing provided by eyewitnesses;

(vi) Mr. Asfaha was the shooter and caused the death of the deceased;

(vii) That there was an intention to kill;

(viii) That Mr. Sheriffe would have seen Mr. Asfaha run to the vehicle with his gun in hand;

(ix) That the evidence was reasonably capable of supporting the inference that help provided by Mr. Sheriffe was for the purpose of helping Mr. Asfaha escape.

[ 21 ] Justice French exceeded his jurisdiction as a preliminary inquiry judge on numerous occasions in his ruling of March 18, 2011.

Planning And Deliberation

[ 22 ] The Crown’s evidence disclosed no apparent motive or link between the Respondent and the deceased, but the requirement of planning and deliberation for first degree murder relates to the intention to take a life and not whether the evidence showed that Mr. Asfaha and Mr. Sheriffe knew they were killing Bishen Golaub as opposed to a stranger or someone else. [ R. v. Thomson , [2004] O.J. No. 1584 (Ont. Sup. Ct.) ; R. v. Burlingham , [1990] P.C.J. No. 1213 (B.C.C.A.)].

[ 23 ] First degree murder should have been left for the jury in this case as an inference can be drawn from the evidence that there was planning and deliberation. The inference need not be a necessary one, but where it is available, committal on first degree murder should follow [ R. v. Dadshani , (2007)] O.J. No. 2595 (Ont. C.A.), affirming [2006] O.J. No. 1857 (Ont. Sup. Ct.) ; R. v. Maciel , 2007 ONCA 196 , [2007] O.J. No. 1034 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 258].

[ 24 ] The fact that the Respondents had a loaded firearm available to them, Mr. Sheriffe turned his vehicle around, stopped it nearby where Mr. Asfaha could disguise himself, approach the deceased from behind on foot and shoot Mr. Golaub three times in his back without any prior contact between them are significant facts which the preliminary inquiry judge did not give sufficient weight. In addition, there is evidence that Mr. Sheriffe acted as a getaway driver from the scene. All of this evidence could lead to an inference that the two Respondents planned to kill the deceased [ R. v. Enright , [2009] A.J. No. 1147 (Alta. C.A.) ; R. v. Turningrobe , 2007 ABCA 236 , [2007] A.J. No. 771 (Alta. C.A.)].

[ 25 ] The deliberation required to prove first degree murder does not necessarily require a lengthy period of time and there is no set period required before the act is done. The issue is whether or not the accused’s act was impulsive. A jury can find deliberation on the basis of circumstantial evidence – as is the case here – or even when other inferences may be possible. The reasoning process behind the accused’s deliberation need not be objectively sensible, but does involve a certain cold-bloodedness. [ R. v. Turningrobe , supra ].

[ 26 ] The Crown alleges that in this case Mr. Asfaha’s calm approach to the scene and the manner in which Mr. Golaub was killed is a “classic execution style killing”. I do not disagree. The evidence that the fatal wound entered through the centre of Mr. Golaub’s back invites the inference that he was executed [ R.v. Fisk , [1996] B.C.J. No. 1232 (B.C.C.A.) at para. 87 ; R. v. Brissett , supra at par. 58-62.

[ 27 ] As well as the evidence of what took place before the murder, the Crown called evidence of post-offence conduct in this case to support the element of planning and deliberation for first degree murder.

[ 28 ] The first piece of that evidence was the quick manner in which Mr. Sheriffe drove through a stop sign as he left the scene of the murder once Mr. Asfaha had entered his vehicle. This evidence could lead to an inference that they had discussed the shooting before it took place and that Mr. Sheriffe was completing his role as getaway driver. Indeed, Justice French found that Mr. Sheriffe saw Mr. Asfaha run to his vehicle with a gun in his hand and that there was a reasonable inference that he was helping Mr. Asfaha to escape from the scene. Yet, he failed or refused to draw the inference from this that it was also a reasonable inference that the Respondents planned the murder.

[ 29 ] In committing Mr. Sheriffe on accessary after the fact to the murder pursuant to section 23 of the Criminal Code , the preliminary inquiry judge had to have found, as an essential element of that charge, that Mr. Sheriffe knew that Mr. Asfaha had committed the murder at the same time that he assisted him in a getaway. It was a logical inference to be drawn from this evidence, then, that Mr. Sheriffe knew about the murder when he drove to the scene because the Respondents had planned the murder.

[ 30 ] The Crown’s second piece of post-offence evidence of planning and deliberation was the Respondents’ meeting after the murder later the same day when Mr. Sheriffe once again let Mr. Asfaha enter his vehicle just before their arrest. I agree with the Crown’s submission – and it makes perfect sense – that this evidence that the two men were on good terms is consistent with their having jointly committed a planned and deliberate murder.

Party Liability

[ 31 ] Based on all of the evidence and for the reasons already set out, Mr. Sheriffe should have been committed on first degree murder as a party pursuant to section 21(1) (b) of the Criminal Code . There was sufficient evidence at the preliminary inquiry that he aided and abetted Mr. Asfaha. As set out by the Court of Appeal in R. v. Dooley , 2009 ONCA 910 , [2009] O.J. No. 5483 at page 49:

The authorities take a wide view of the necessary connection between the acts of alleged aiding or abetting and the commission of the offence. Any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime. The necessary connection between the accessory’s conduct and the perpetrator’s commission of the crime is captured by phrases such as ‘actual assistance or encouragement’ or “assistance or encouragement in fact” or as the appellants argue, conduct that “has the effect” of aiding or abetting.

[ 32 ] Mr. Sheriffe stopped his vehicle close to the scene of the murder. He waited there while the murder was committed. There is evidence that his engine was running leading to an inference he knew what was about to happen and was ready to drive Mr. Asfaha away from the area after the murder took place.

[ 33 ] It was not necessary for Mr. Sheriffe to know the details about what Mr. Asfaha was going to do to kill Mr. Golaub. He only needed to know that Mr. Asfaha was going to commit murder by intending to kill the deceased or by intending to cause bodily harm to the deceased that he knew was likely to cause death to the deceased, and was reckless as to whether death ensued [ R. v. Maciel , supra. ].

[ 34 ] As I have already concluded that there is ample evidence for the trier of fact to infer that, based on Mr. Sheriffe’s actions before, during and after the homicide, he was involved in the planning and deliberation of it. However, Mr. Sheriffe was not required to actually participate in the planning and deliberation to be culpable as an aider and abettor. As long as he knew about the plan and either executed it or participated in the execution of it, he can be found guilty of first degree murder as a party, pursuant to section 21 (1) (b) [ R. v. Brown , [1995] N.S.J. No. 453 (N.S.C.A.) at para. 58 ; Maciel , supra at para. 89] .

[ 35 ] The Crown is not required to prove that Mr. Sheriffe actually wanted Mr. Asfaha to kill Mr. Golaub [ R. v. Briscoe , 2010 SCC 13 , [2010] S.C.J. No. 13; R. v. Hibbert , 1995 110 (SCC) , [1995] S.C.J. No. 63 at para. 37] .

[ 36 ] The Crown does not have to prove that Mr. Sheriffe had an intent to kill Mr. Golaub but only that he had knowledge of Mr. Asfaha’s intention to do so and that Mr. Sheriffe intended to assist Mr. Asfaha [ R. v. Briscoe , supra at para. 18] .

[ 37 ] Mr. Sheriffe can also be found guilty of first degree murder as an aider and abettor if he did not have knowledge of Mr. Asfaha’s intent to kill the deceased, but if, instead, he deliberately chose not to make inquiries when his suspicions about the shooter’s intent were aroused [ R. v. Briscoe , supra at para. 20-25] .

[ 38 ] There are numerous examples, set out in the Crown’s factum from page 25 – 29, of instances where the preliminary inquiry judge failed to consider the whole of the evidence and weighed competing inferences to make his order discharging the Respondents on first degree murder. Without repeating them here, I have relied upon them to conclude that he exceeded his jurisdiction in making that order.

Conclusion

[ 39 ] The Crown’s application is granted. The order discharging the Respondents on the charge of first degree murder is quashed. This matter shall be sent back before Justice French. He shall commit both Respondents to stand trial on first degree murder.

McWatt J.

Released: January 23, 2012

COURT FILE NO.: 11/50000200/0000

DATE: 20120123

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – AWET ASFAHA and CHRISTOPHER SHERIFFE Respondents

Ruling ON CROWN’S APPLICATION FOR CERTIORARI McWatt J.

Released: January 23, 2012