COURT FILE NO.: YC 50000006-12
DATE: 20130529
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[Note: This proceeding is subject to publication restrictions under section 110 of the Youth Criminal Justice Act.]
B E T W E E N:
HER MAJESTY THE QUEEN
P. Zambonini & K. Lockhart, for the Crown
Respondent
- and -
S.B.1, T.F., M.W. and S.B.2 (young persons pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
S. Boutzouvis & A. Moustacalis, for S.B.1 I. Kostman, for T.F. D. Goodman & M. Simrod, for M.W. S. Robichaud & N. Amiri, for the applicant, S.B.2
Applicant
HEARD: May 8, 2013
Nordheimer J.:
[1] I begin my reasons by mentioning that all accused persons in this case are young persons under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1. As a consequence, I will refer to them throughout these reasons by their first name and last initial.
[2] S.B.2 applied for a directed verdict regarding a charge of first degree murder. On May 10, prior to calling on the accused persons to decide whether they would be calling evidence, I advised that the application for a directed verdict was dismissed. I further advised that my reasons for that conclusion would follow. I now provide those reasons.
[3] S.B.1, T.F., M.W. and S.B.2 are all charged with the first degree murder of Tyrone Bracken. S.B.2 contends that there is insufficient evidence upon which a jury, properly instructed, could reach a verdict of guilty. While the test is normally stated in terms of a jury’s conclusion, it should be noted that this is a judge alone trial. Nevertheless, the test is the same.
[4] The background facts, that I believe I can state relatively briefly for the purposes of this application, are that on November 17, 2010, shortly before 3:40 p.m., sixteen year old Tyrone Bracken was shot and killed in the west staircase at 135 Neptune Drive in the City of Toronto. The apartment building at 135 Neptune Drive is one of three buildings on Neptune Drive that together form the Neptune complex.
[5] The evidence shows that earlier in the afternoon, Tyrone Bracken was in the hallway outside his mother’s apartment at 135 Neptune along with other males. The precise combination of individuals who were present in the hallway varied from time to time but, on the evidence, it could be concluded that S.B.1, T.F., and the applicant were among those present. At some point, the group moved from the hallway into the east staircase that is close to the Bracken apartment. Some time after 3:00 p.m., Tyrone advised his cousin, who was in the apartment, that he was leaving to go to the store. Tyrone’s cousin told Tyrone’s mother, who was also in the apartment, that Tyrone was leaving.
[6] As these events were unfolding, there was a series of text messages between T.F.’s phone and a phone that could be connected to M.W. and a third phone that could be connected to S.B.1 In these text messages, there are references to Tyrone Bracken being in the hallway, instructions being given to keep him in the building, about M.W. bringing a gun to the building and so on. There is certainly an inference that is open on these text messages that T.F., M.W. and S.B.1 were plotting to do harm to Tyrone Bracken.
[7] Directly after Tyrone Bracken was shot, the applicant and T.F. and a third male who cannot be identified, are seen on surveillance video running from the area of the west staircase door of 135 Neptune. Tyrone Bracken’s body was found on the floor of the west staircase, just inside this door. Tyrone Bracken had been shot twice. One bullet had grazed his cheek and nose and buried in the wall of the staircase. The other had entered Tyrone Bracken’s head below his right ear and had stopped inside his left temple. This gunshot wound would, for all intents and purposes, have been immediately fatal.
[8] In addition to this evidence, there is other video surveillance evidence that shows the applicant in the company of T.F. and another male prior to the killing. These three males are seen wandering through the Neptune complex and eventually entering 135 Neptune. There is expert evidence that suggests that the applicant may have had a heavy object in the front pocket of the sweat shirt or hoody that he was wearing. The same expert gave evidence that, after the shooting, when the applicant and T.F. are seen running from the scene, it is less apparent that there is any object in the pocket of the applicant’s hoody but, at the same time, T.F. is seen running in a manner that, according to the expert, is consistent with someone who has a gun in his possession.
[9] The applicant does not contest that there is evidence that suggests that there was a plan by S.B.1, T.F. and M.W. to kill Tyrone Bracken. The applicant also does not contest that he was present before and at the time that the murder occurred. What the applicant does assert is that there is insufficient evidence that could allow for a conclusion that he was involved in or knew that the other accused intended to kill Tyrone Bracken. Rather, the applicant says that the evidence merely demonstrates that he was an innocent observer of this killing or, put another way, he was simply in the wrong place at the wrong time.
[10] While I acknowledge that there are any number of inferences that can be drawn from the evidence that might favour the applicant’s position, at this stage it is not a question of deciding which inferences, amongst many, should be drawn. Indeed, at this stage, it is not open to me to decide what inferences should be drawn even where the more reasonable inference is one that favours the applicant. Rather, if there is an inference available on the evidence that favours the position of the prosecution, that is the inference that I must consider – see R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635
[11] While I do not intend to address all of the examples where this principle has application in this case, some examples of that principle should be mentioned. In terms of the plot to kill Tyrone Bracken, it was important for the perpetrators to know when Tyrone Bracken would be at the Bracken apartment. This was important because Tyrone Bracken was not living at the Bracken apartment at the time that he was killed. Rather, he was then living in Brampton. Video surveillance from the Neptune complex shows T.F. and another male, at about 1:30 p.m. (about two hours before the murder) walking through the complex towards 155 Neptune where the applicant’s mother and sister lived. They go into 155 Neptune. About twenty minutes later, T.F. and this male leave 155. The applicant is now with them. A couple of minutes before leaving the building T.F. texts M.W. “the d is outhere”.[^1] The reference to “d” is to Tyrone Bracken whose street name was “Detroit” or “d” for short.
[12] The prosecution says that a reasonable inference can be drawn that T.F. and this other male entered 155 Neptune for the purpose of going to the applicant’s home. If so, they would have talked to the applicant and could have learned from him that Tyrone Bracken had arrived at the Neptune complex thus leading to the text message sent by T.F. This information would have come to the applicant, according to the prosecution, because when Tyrone Bracken arrived at the complex about half an hour earlier, he saw and waved at the applicant’s sister who was walking between buildings in the complex. The applicant’s sister is seen looking back in the direction of Tyrone Bracken when he waves but she makes no form of acknowledgment of his wave or of his presence.
[13] The applicant says that this is not a reasonable inference. He argues that the prosecution cannot submit that his sister saw Tyrone Bracken because the prosecution did not call her as a witness and give her the opportunity to say whether she saw him or not.[^2] The applicant submits that this failure offends the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). I do not agree with that submission. The rule in Browne v. Dunn prohibits a party from leading evidence to contradict a witness without giving the witness the opportunity to explain. This is not that situation. The prosecution here is not attempting to impeach a witness. The prosecution is entitled to make submissions based on what the surveillance videos show and what reasonable inferences might be drawn from that evidence. The prosecution is also not obliged to call every witness who may have relevant evidence. The prosecution is only obliged to call witnesses whose evidence is “essential” to the narrative – see R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113.
[14] I do agree with the applicant that there is no direct evidence that his sister told the applicant that she had seen Tyrone Bracken. Further, even if she did tell the applicant that she had seen Tyrone Bracken, there is no evidence that the applicant told T.F. about this. Nevertheless, the fact that T.F. and the other male go to the applicant’s building, leave in the company of the applicant twenty minutes later and that, two minutes before leaving, T.F. sends a text message that Tyrone Bracken is in the complex, allows for the inference to be drawn that T.F. learned that information from the applicant or his sister. It is not an inference that would have to be drawn but it is one that is open on the evidence and the prosecution is entitled to the benefit of that inference for the purposes of this application.
[15] I do agree with the applicant that, if he told T.F. that Tyrone Bracken was in the Neptune complex, that act by itself does not mean that he had knowledge of a murder plot. It could have been a perfectly innocent conversation since the applicant and T.F. both had connections to the Neptune complex and they both knew, and were friends with, Tyrone Bracken. Nonetheless, it is a piece of evidence that the prosecution is entitled to rely upon in building its case.
[16] Another example arises from the fact that the applicant is in the company of T.F. for almost the entire two hours prior to the killing. Throughout that time, T.F. is engaged in a series of text messages and telephone calls with M.W. and S.B.1 in furtherance of the plot to kill Tyrone Bracken. The prosecution contends that the applicant could not have been ignorant of what was going on in this regard. The applicant responds by again asserting that there is no direct evidence that he knew about the contents of these text messages or the telephone calls. There is no evidence that the applicant saw the text messages and, even if the applicant heard one side of the telephone calls, that would not necessarily inform him of what the telephone calls were about. The applicant also points to the fact that there is not a single text message between him and any of the other accused throughout this period. The prosecution replies to that fact by pointing out that there would not be any need for any of the accused to text the applicant because he was almost constantly in the company of T.F. Once again, there is an inference available to the prosecution on this evidence that the applicant would have been aware of what was going on given his proximity to T.F. over an extended period of time and the prosecution is entitled to the benefit of that inference.
[17] The applicant also points to his demeanour during this two hour period. He contends that it shows that he is blasé or unconcerned and that that is inconsistent with him being part of a murder plot. There are a number of difficulties with that submission including the fact, as fairly acknowledged by the applicant’s counsel, that reliance on demeanour evidence is always a risky proposition. The fact is that there is no set demeanour that persons who are involved in a plot to murder someone must, or would usually, display. It is also a fact that the applicant’s demeanour at the time is not appreciably different than that of T.F. and yet T.F. is said by both the applicant and the prosecution to be a central figure in the murder plot.
[18] The applicant also points to the fact that immediately prior to the murder, he left the company of T.F., walked to 155 Neptune (presumably to go to his home), then went to 145 Neptune and then returned to 135 Neptune. The applicant says that his actions defy any suggestion that he is engaged in a murder plot as they display no urgency to his actions. Again, this is a variation on demeanour evidence and the same comments apply to it.
[19] There is a particular text message upon which the applicant places great reliance. It is an exchange between M.W. and T.F. minutes after the murder has taken place where M.W. tells T.F. “Yur dum”. T.F. responds “How”. T.F. then sends another text saying “I didn’t bring him the d did”. The applicant says that this exchange of text messages shows that he was not present in the staircase as part of the murder plot but rather had been brought to the staircase by the deceased and that the other participants in the murder plot were upset that he was there. The prosecution responds to that suggestion by asserting that T.F. is lying in his response to M.W.’s comment, that T.F. may have involved the applicant without M.W. and S.B.1 being aware of it and then, only after M.W. berated him for the presence of the applicant, chose to blame the deceased for the applicant’s presence. The prosecution points to other text messages from T.F. where he was clearly being untruthful as proof that T.F. was not adverse to lying if it suited his purposes.
[20] Both of these explanations for this exchange of text messages are available on the evidence. Again, the prosecution is entitled on this application to the benefit of the explanation that favours its position.
[21] The applicant also points out that, after the murder, there are a series of text messages that suggest that S.B.1 and M.W. are contemplating killing him because they are afraid he is going to tell the police (“rat them out”) that they were involved in the murder. The applicant submits that the nature and content of these messages are inconsistent with him being a part of the murder plot. I do not agree. I accept that that is one possible interpretation of the text messages but it is not the only one. It may equally be the case that the applicant was part of the plot but that the others are now concerned that he is going to break ranks with them or turn on them to save himself. The prosecution also counters the suggestion that the applicant was not part of the murder plot by pointing out that, if he was not and his presence was a problem, then logically the murder would have taken place when the applicant left 135 Neptune for the number of minutes that he did just before the murder did occur. That did not happen, however. The murder occurred after the applicant returned to the building.
[22] The prosecution also points to the fact that, after the murder, the applicant ran to his home. He then called for a taxi and, some minutes later, left the complex in that taxi. The prosecution says that if the applicant was not a part of the murder, he would have done something to alert others to what had happened. He would have called someone (e.g. his mother, his sister, Tyrone’s mother) but he did not. The prosecution also points to the fact that the applicant made no attempt to summon help for Tyrone Bracken which one would assume he would have done if he was not involved, especially given that Tyrone Bracken was his friend.
[23] While the applicant acknowledges that his conduct in this regard “looks bad” on the surface, he says that it must be considered in the context as a whole including the fact that there is present within the Neptune complex the “Code of Silence”[^3] which strongly militates against anyone saying anything about criminal activities, even to one’s own family. The applicant also submits that it is dangerous to make assumptions about how any given person would react to such a situation, especially a sixteen year old boy.
[24] I accept that it is generally unwise to place too much reliance on how an outsider might think a person would or should react to a given situation. It is equally unwise to make assumptions as to how a sixteen year old boy might act who has just seen a friend of his shot and killed and who lives in an atmosphere like the one that appears to have pervaded the Neptune complex. Again, however, this is in essence demeanour evidence just of a different type. Both positions are available on the evidence. It is not my role on this application to resolve the differences between those positions. I must assume that the position of the prosecution could triumph.
[25] As I said, there are other instances where different inferences could be drawn including later communications between S.B.1 and M.W. where the applicant’s life is threatened. As with the inferences that I have mentioned, it cannot be established that these other inferences that the prosecution seeks to draw are unreasonable or are not grounded in the evidence.
[26] While I have alluded to many of the principles that apply to this type of application, it is worthwhile outlining certain of those principles directly. The core principle that must guide my decision is that it is not my role on an application for a directed verdict to review the evidence and conclude whether that evidence would satisfy me of proof of any offence beyond a reasonable doubt. Rather, my role is much more limited. The proper approach to be taken has been stated in a number of cases but it is summarized in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 where McLachlin, C.J.C. said, at para. 21:
The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, ‘whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty’: [citations omitted]. Under this test, a preliminary inquiry judge must commit the accused to trial ‘in any case in which there is admissible evidence which could, if it were believed, result in a conviction’: [citation omitted]
[27] Putting that test another way, it is not my function to decide whether I would find the accused person guilty based on the evidence that has been led. Rather, my very limited role is to decide whether there is any evidence upon which a jury properly instructed and acting reasonably could return a verdict of guilty. That said, the term “any evidence” cannot be used in its absolute terms. The evidence, while it may even be scant, must still be sufficient to make out the offence. This point was recently made in R. v. Turner (2012), 2012 ONCA 570, 292 C.C.C. (3d) 69 (Ont. C.A.) where the Court of Appeal reiterated the observation made by McLachlin J. in R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at p. 701:
... “sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.
[28] There is one important caveat to the principle as stated. A trial judge is permitted to engage in a limited evaluation of the evidence in determining what it could reasonably prove. This limited role arises where proof of the offence, as is the case here, relies on circumstantial evidence from which the trier of fact will be asked to draw certain necessary inferences. In those situations, a trial judge considering an application for a directed verdict is entitled, again to a limited degree, to weigh the evidence. As McLachlin, C.J.C. also said in Arcuri, at para. 23:
The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.
[29] The question then becomes: does the evidence in this case rise to the very low threshold that the prosecution must cross to defeat a motion for a directed verdict?
[30] For the applicant to be found guilty of first degree murder, there must be some evidence upon which the jury could conclude that he was a party to the planned and deliberate murder of Tyrone Bracken. The text message evidence in this case is sufficient to establish that the murder of Tyrone Bracken was planned and deliberate. The more difficult issue is who participated in that planned and deliberate murder.
[31] In my view, the evidence taken as a whole could allow a jury to conclude that the applicant was a party to the murder of Tyrone Bracken. A jury could conclude that the applicant told T.F. that Tyrone Bracken had returned to the Neptune complex and then joined with T.F. as the plot to kill Tyrone Bracken was put in motion. A jury could conclude that such a conclusion is also consistent with the applicant’s almost constant presence with T.F. from that point until Tyrone Bracken was shot and killed and that his presence would have made him aware of what T.F. was undertaking in all of his communications with M.W. and S.B.1 A jury could also find that conclusion consistent with the fact that the applicant was present when the murder took place and consistent with him running from the murder scene along with T.F. A jury could also find that conclusion consistent with the fact that the applicant then fled from the scene of the murder in a taxi without alerting anyone to what had happened or taking any steps to summon help for Tyrone Bracken.
[32] All of these conclusions are available on the evidence. None of that is to say that any or all of these conclusions would be drawn by a jury. It is sufficient for the purposes of this application to find that those conclusions are open to a jury on the evidence.
[33] In reaching this conclusion, I repeat that the threshold that the prosecution must pass on a directed verdict application is a very low one. It is whether there is any evidence that a properly instructed jury acting reasonably might believe. It is not a question whether I would believe the evidence or whether I would draw the inferences that are available. This point is made in R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154 where Mr. Justice McIntyre said, at p. 166:
In conclusion, I do not suggest that the inculpatory evidence is conclusive or even persuasive. That is not the function of an appellate court. The resolution of that question is for the jury upon proper instructions on the law after having heard the evidence. ... It is not open to a judge in a jury trial to consider the weight of the evidence. This is the function of the jury and it should be left to them.
[34] In other words, if there is a view of the evidence that a jury might accept that would prove the material elements of the offence, the application for a directed verdict must fail. While there are different inferences that might be drawn from the evidence, as I have already said more than once, for the purposes of this application, the prosecution is entitled to those inferences that are most favourable to its position.
[35] For the reasons that I have set out, those favourable inferences, if accepted, would be, in my view, sufficient to establish the guilt of the applicant on the charge of first degree murder.
[36] It is for these reasons, therefore, that I concluded that the directed verdict application regarding the charge of first degree murder could not succeed.
NORDHEIMER J.
Released: May 29, 2013
COURT FILE NO.: YC 50000006-12
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
S.B.1, T.F., M.W. and S.B.2
Applicant
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: For the purposes of my reasons on this application, I will accept that the prosecution can prove that a certain telephone number was being used by M.W. and that certain telephone numbers were being used by S.B.1 even though I am aware that for purposes of trial, those matters are very much in dispute.
[^2]: The applicant goes further on this issue by pointing out that S.B.2’s sister was called at the preliminary hearing in this matter where she said that she had not seen Tyrone Bracken. I cannot consider evidence from the preliminary hearing at this juncture. I must consider only the evidence that was led at trial.
[^3]: I had the expert evidence of Sgt. Gavin Jansz on the subject of the Code of Silence. Simply put, the Code of Silence means that persons will not speak to or co-operate with the police in terms of their investigation of criminal activities. It is understood that if a person does speak to the police, or is believed to have done so, harm will come to that person.