ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-40000085-00MO
DATE: 20130116
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
ARRAF KASSIM, ROHAN SHIWSHANKAR, NAPOLEON ROCHESTER, ANTHONY NELSON and YOVIDRA SHIWSHANKAR
Respondents
Craig Harper, for the Applicant
Sam Goldstein, for the Respondent Arraf Kassim
Gordon Cudjoe, for the Respondent Rohan Shiwshankar
Mitchell Chernovsky, for the Respondent Napoleon Rochester
Tanya Thompson, for the Respondent Anthony Nelson
Brad Burgess, for the Respondent Yovidra Shiwshankar
HEARD: December 3, 2012
Forestell J.
reasons for decision
Introduction
[1] The Respondents Arraf Kassim, Rohan Shiwshankar and Napoleon Rochester were charged with first degree murder in the death of Andre Daley on October 18, 2009. The respondents Anthony Nelson and Yovidra Shiwshankar were charged with manslaughter in Mr. Daley’s death. All of the respondents were also charged with attempting to murder Ayam Youssif, Ethan Shanks and Evan Rodgers while using a firearm.
[2] The charges arose out of a shooting in a parking lot on October 18, 2009 in which Mr. Daley, Mr. Youssif, Mr. Shanks and Mr. Rodgers were shot. Mr. Daley died of his wounds.
[3] The preliminary inquiry proceeded over thirteen days in February and March 2011. At the conclusion of the preliminary inquiry the Crown sought the committal of each of the respondents on charges of first degree murder of Andre Daley, attempted murder of Ayam Youssif while using a firearm and aggravated assault of Evan Rodgers.
[4] The preliminary inquiry judge discharged all of the respondents on all counts.
[5] The Applicant brings this application for review by way of certiorari and seeks an order quashing the order discharging the Respondents and remitting the matter to the preliminary inquiry judge with a direction to commit the Respondents to stand trial on the charges.
The Evidence
[6] The evidence is summarized in the reasons of the preliminary inquiry judge in her reasons at paragraphs 4 to 22 as follows:
[4] At 12:11 a.m. on October 18, 2009 the five defendants and Michael Seenarine arrived outside of the First Choice Restaurant. They entered the vestibule and were searched by security guards before entering the bar. Immediately behind the defendants in the line to enter were Andre Daley, Ayam Youssif and Ethan Shanks. Daley was also accompanied by two other males, one of whom wore a dark jacket with the word "Crooks" on the back in white letters (Crooks), and the other wearing a yellow jacket with leopard spots on it (YJ). There is no indication that either group of men was acquainted with the other.
[5] After Crooks and YJ were searched, they entered the bar. Daley tried to push further into the vestibule and was blocked by Karen Buchanan. Shanks was searched and entered the club. When Daley was searched by Latina McLean, she felt a hard object at the back of his waist that she believed to be a gun. Daley was excluded from the bar and his companions, including those who had already entered the premises, departed with him.
[6] The Daley group went around a corner outside of the bar. They appeared to be having a discussion. Six minutes after being excluded, Daley returned to First Choice, alone. He was searched by Karen Buchanan, the more senior security guard. After no weapon was found, Daley entered the bar. His friends returned to the club approximately three minutes later.
[7] At 2:01 a.m., Ralston Rattray, Leighton Reid, Evan Rodgers and Nina Garner went through security and entered First Choice.
[8] Rattray and Reid went to the washroom as soon as they arrived in the bar. According to Rattray, the washroom is a place to meet friends, "accumulate funds" to buy a bottle and arrange a place to stand in the bar. Rattray and Reid encountered Daley, Youssif and their companions in the washroom. Youssif was being "mischievous" and teasing another man in the washroom about the chain he was wearing. Youssif was "disrespecting the guy". Rattray testified that the man being "disrespected" did not appear to take offence. However, Rattray acknowledged that he felt "uncomfortable" and offended by Youssif's conduct. Indeed, immediately after this incident, Rattray said that he left the bar and stayed in his van for 5 minutes before rejoining his friends.
[9] At 2:16 a.m. all of the defendants and Seenarine began exiting from the bar. Rochester was the first of the group to leave. Between 2:19 and 2:48 a.m. there was an intense period of cellular telephone communication between certain members of the group: 19 calls were made between Nelson and Rochester; five calls between Kassim and Rochester.
[10] At 2:29 a.m., Rohan Shiwshankar's Infiniti sedan, driven by his brother, Yovidra, moved to the northwest corner of the parking lot encircling the strip mall and backed into a parking space. Five minutes later, the Infiniti pulled out of the parking spot and drove south on the west side of the plaza. At 2:45 a.m. Rochester parked his Camry on the north side of the parking lot. Three minutes later, Nelson parked his vehicle on the same side of the plaza. At 2:50 a.m., Kassim and Rohan walked along the parking lot towards Rochester's Camry and met Nelson and Rochester there. A minute later, Yovidra drove back to the north end of the lot and stopped close to where the Camry was parked. There appeared to be a conversation between Yovidra, Rochester and Kassim in Rohan's presence, before the Infiniti moved off to the east, along the north side of the parking lot. Kassim and Rochester stayed in that location. At 2:52 a.m., the Infiniti drove west along the north side of the plaza, on the way to where Kassim and Rochester were waiting. Rohan moved to the sidewalk at the northwest corner of the strip mall - a position from which one could see the entrance to First Choice. When the Infiniti stopped, Nelson stood at the front of the car, as if keeping watch. Kassim and Rochester went to the trunk of the vehicle. Rochester took Kassim's sawed-off shotgun from the trunk of the Infiniti. The gun was placed in Rochester's left sleeve.
[11] At 2:54 a.m. Kassim and Rochester went to the sidewalk where Rohan was standing. The three men walked south towards the bar, followed by Nelson. Between 2:55 and 2:59 a.m. Rohan and Kassim stood outside the entrance to First Choice and, at times, appeared to be looking inside the club. Rochester walked back north along the sidewalk at 2:59 a.m. in the direction of his Camry. At this time the shotgun was concealed in the right sleeve of his jacket. Nelson followed behind Rochester.
[12] At 3:00 a.m. Kassim and Rohan returned to the Infiniti, which Yovidra had driven around the lot and stopped at the north end of the plaza. They went to the rear of the vehicle, where Kassim lifted the open lid of the trunk and then lowered the lid without closing it. Rochester got into the driver's seat of his Camry. One minute later, the Daley group exited the bar. Rochester pulled his car out of its parking space. Nelson got into the front passenger seat of the Camry, while Rohan and Kassim entered the back seat. The Infiniti was driven to the front of the strip mall, where it left the plaza. Rochester drove the Camry east, towards the back of the strip mall.
[13] At 3:02 a.m. Rodgers, Rattray and Reid left the bar. Nina Garner was already outside, smoking a cigarette. As Rattray got outside, he was approached by Daley, who asked if he and his companions could have a ride home. Rattray agreed, since he was friends with Daley and was intending to take Rodgers to the same area.
[14] An unknown vehicle, visible only as a set of headlights, pulled up from the south to the area outside of the bar. The silhouette of a person can be seen walking by the vehicle at 3:03 a.m. A second person's outline appeared beside the car a short time later.
[15] Rattray and Reid went to Rattray's van following Daley's request for a ride. Just after Reid arrived at the passenger side of the van, he heard an argument. Rodgers also heard an argument as he began walking to the van. Youssif and Daley were standing about six feet away from the van, with Youssif's arm around Daley's shoulders. Close to the two men was Anthony Nelson. Youssif was exchanging insults with Nelson. Since Reid knew both Nelson and Daley, he "tried to calm things down". When Reid believed the dispute had been settled, he turned back to the van. At that time the first shot was fired. Nina Garner heard the shot from where she was sitting in the front passenger seat. She saw Rodgers approaching the van and got out of the vehicle to open the side door for him. A bullet struck the interior of the open front passenger door, causing the window to shatter. Garner helped Rodgers, who had been shot, into the van.
[16] Rattray testified that he saw the shooter: a black man, all dressed in black, in the shadows, at a distance of 20 to 30 feet away. Garner described seeing a black man crouched down on one knee and shooting in a southward direction.
[17] Reid ran across the street right after the shooting began and, eventually, took a taxi home. Rattray drove away while the shooting continued and dropped Rodgers and Garner off at the hospital. Rodgers suffered four gunshot wounds to his left buttock and two wounds to his left calf. His left fibula was broken. Youssif was shot seven or eight times. He collapsed on the sidewalk outside of the bar, but later made his way into the vestibule. Shanks was struck by a bullet on his right stomach, which exited by his left hip. Nelson was shot in the foot. He removed his boot and limped north to his car. Daley was shot four times: one bullet struck his left lower face then penetrated to the right side of his neck; another hit the bottom of his right foot, exited the top of his foot, entered his lower leg and traveled up to his groin; a third entered his mid-back and perforated his left abdomen; and a fourth bullet struck his back right flank and penetrated his left upper abdomen.
[18] The numerous cartridge casings and projectiles from the shooting were located in two clusters, one group about 27 feet north of the other. Thirty-five items, consisting of projectiles and cartridge cases, were submitted to the Centre of Forensic Sciences. The northern cluster of cartridge cases came from a Glock 9 mm handgun, which was found with an empty magazine in a field south of the strip mall. A 9 mm Browning Hi-Power pistol, which was subsequently recovered in Windsor, was linked to bullets that struck Daley and Youssif, as well as the southern cluster of cartridge cases.
[19] Rattray's van was parked facing north, in a position perpendicular to the marked parking spaces in the lot. A number of witnesses indicated that the van was parked south of the bar, near the southern collection of cartridge cases. However, Rattray situated the van opposite the bar near the northern group of cartridge cases. Garner's account of seeing a man at the rear of the van shooting south supports Rattray's location of the van. In addition, window glass was found on top of the northern cases.
[20] Security guard Hyung Chan drove past the plaza and heard between 10 and 20 gunshots. He made a u-turn and pulled into the parking lot, partially blocking the entrance. Mr. Chan arranged for police and emergency services to be contacted through his dispatcher. He saw people running from the scene and cars lined up to leave the parking lot. Mr. Chan was at the side of Andre Daley within about 90 seconds of first hearing the gunshots. Police arrived at the scene within three to four minutes of Chan's call to his dispatcher. The parking lot was locked down as a crime scene and vehicles, including that of Mr. Chan, were not permitted to leave.
[21] Rochester's Camry was located, abandoned, in the southeast corner of the parking lot. There was a bullet just above the licence plate of the vehicle. The sawed-off shotgun was found under the front driver's seat. The weapon was loaded. No shotgun cartridge cases were found at the scene.
[22] In a statement to the police, Kassim admitted leaving Rochester's car and fleeing through a gap in the fence at the south of the plaza parking lot. He ran through a fence and called Yovidra to be picked up. Telephone records show a call from Kassim's phone to Rohan's phone at 3:13 a.m.
[7] Although the evidence at the preliminary inquiry included surveillance videos, no camera captured the actual shooting.
The Position of the Crown at the Preliminary Inquiry
[8] The Crown sought committal of all five respondents on the theory that the five engaged in a joint enterprise in which they planned to ambush Mr. Youssif with a gun. In carrying out the plan, they wounded Youssif and Rodgers and they killed Andre Daley. Although Shanks was also wounded, the Crown did not seek committal in relation to Mr. Shanks. It was the theory of the Crown that the Respondent Nelson confronted Youssif and that Kassim, Rochester and Rohan Shiwshankar approached the group in Rochester’s car. One of the Respondents, other than Yovidra Shiwshankar, shot at the Daley group from near rochester’s car. The Daley group fired back. Daley,Youssif and Rodgers were shot by one of the Respondents. Nelson was shot in the foot in the exchange.
The Decision of the Preliminary Inquiry Judge
[9] The decision of the preliminary inquiry judge is set out at paragraphs 26 to 29 of her reasons as follows:
¶26 Although many of the actions of the various people involved in this incident are shown by the numerous surveillance cameras at the plaza, the shooting itself is not visible. The crucial portion of the prosecution's case on all of these charges is founded on inferences that counsel suggests are available on the evidence I have heard.
¶27 When dealing with a case involving circumstantial evidence, a judge presiding at a preliminary hearing is to engage in a "limited weighing" of the evidence to assess the reasonableness of any inferences that may be drawn from the evidence: R. v. Arcuri, supra at para. 23. An inference is a factual deduction that can reasonably and logically be drawn from a fact or group of facts established by the evidence: R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at para. 52. In order for an inference to be legitimately drawn, it must be both reasonably based on the evidence and a reasonable conclusion from those proven facts: R. v. Munoz, 2006 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.) at paras. 22-31. As the Court of Appeal cautioned in United States of America v. Huynh, 2005 34563 (ON CA), [2005] O.J. No. 4074 at para. 7: ‘The process of drawing inferences from evidence is not, however, the same as speculating, even where the circumstances permit an educated guess.’
¶28 In my opinion, there is a fundamental flaw in the Crown's analysis of what inferences a jury could properly draw from this evidence. I accept that a reasonable trier of fact could find that the defendants had entered into a joint venture to ambush Youssif and his friends with a gun. Similarly, the route taken by Rochester's car in leaving the north end of the parking lot with his three co-defendants, together with Nelson's presence in an area near the bar in order to confront Youssif and the bullet hole in the Camry support an inference that Rochester's car was the vehicle visible by its headlights that pulled up from the south just before the shooting. However, there is no evidence connecting any of the defendants present at the plaza at the time of the shooting to either the Glock or the Browning pistols. This absence takes on heightened significance when considered with the fact that the only firearm that was connected with the defendants was not used. I recognize that handguns are easy to conceal. Nonetheless, I believe that it would be conjecture to conclude from these facts that Napoleon Rochester, Arraf Kassim or Rohan Shiwshankar fired the Browning pistol that killed Daley or that the other defendants were aware of a handgun and its intended use.
¶29 Given the absence of any evidence upon which a reasonable jury properly instructed could find that any of the defendants were participants in these offences, they are discharged on all counts.
The Issues
[10] The Applicant concedes that the preliminary hearing judge correctly articulated the test for committal and considered all of the evidence. However, the Applicant submits that the justice exceeded her jurisdiction by weighing the evidence, choosing between competing inferences and weighing one piece of evidence in isolation.
[11] For the reasons that follow I find that the preliminary inquiry judge exceeded her jurisdiction by choosing between competing inferences or by weighing the evidence.
Analysis
The test for Committal for Trial
[12] A judge at a preliminary inquiry must commit for trial where there is sufficient evidence on each element of the offence. The test as articulated in United States v. Sheppard (1976), 1976 8 (SCC), 30 C.C.C. (2d) 424 (S.C.C.) is whether or not there is any evidence upon which a reasonable jury, properly instructed could return a verdict of guilty.
[13] The preliminary inquiry judge must discharge the accused if, in her opinion, on the whole of the evidence no sufficient case is made out to put the accused on trial.
[14] The test for committal is the same whether the evidence is direct or circumstantial. However, in applying the sufficiency test to circumstantial evidence, the trial judge must engage in a limited weighing of the evidence that is not necessary where there is direct evidence on every element of the offence.
[15] In Arcuri, the Supreme Court made it clear that the preliminary inquiry judge must consider the evidence as a whole – including exculpatory evidence.
[16] The Supreme Court of Canada in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, held that where the Crown’s case on an essential element of the offence relies wholly on circumstantial evidence, the preliminary hearing judge must engage in a ‘limited weighing’ of the evidence as a whole to determine whether, if the evidence is believed, it would be reasonable to infer guilt. The limited weighing is not a weighing of the reliability or credibility of the evidence, but an assessment of the reasonableness of the inferences to be drawn from the evidence.
[17] Ducharme J., in R. v. Munoz (2006) 2006 3269 (ON SC), 205 C.C.C. (3d) 70, (Sup.Ct.) explained the process of limited weighing as follows:
This limited weighing means that inferences to be drawn from circumstantial evidence need not be "compelling" or even "easily drawn" in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve.... If a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary hearing is required to draw it.
[18] In R. v. Coke, [1996] O.J. No. 808 (Gen. Div.), Hill J. summarized the approach to circumstantial evidence at paras. 10 and 11:
Not infrequently, it is submitted by an applicant seeking to quash a committal order that other explanations or inferences, inconsistent with guilt, but equally consistent with innocence, can be rallied to counter the theory submitted by the Crown. This approach risks usurpation of the jury function. Such submissions are, at times, divorced from the context of the whole of the evidentiary record. The extent of weighing evidence for the justice is directed to the presence of any evidence, not the reconciliation of contradictions or competing inferences.
It is not a legitimate exercise of judicial discretion for a preliminary inquiry justice to ignore the incriminatory probative value of an item or chain of related items of evidence simply because an equally permissible inference accords with an innocent interpretation.
The test on Certiorari
[19] A reviewing court should only intervene by way of certiorari where the preliminary hearing judge commits a jurisdictional error. An erroneous conclusion on the sufficiency of the evidence which leads to discharge is not a jurisdictional error. As set out in R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 at paragraph 23:
The jurisprudence of this court leaves no doubt that a preliminary inquiry judge commits a jurisdictional error by committing an accused for trial under s. 548(1)(a) when an essential element of the offence is not made out. Conversely, it is not jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b). In that situation, it would be improper for a reviewing court to intervene merely because the preliminary inquiry judge’s conclusion on sufficiency differs from that which the reviewing court would have reached.
[citations omitted]
[20] However, a preliminary hearing judge may not weigh competing inferences nor choose between them. Major J., speaking for the majority in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 at paragraph 25: “If the preliminary inquiry judge preferred an inference favourable to the accused over an inference favourable to the Crown, then he would have exceeded his jurisdiction by deciding an issue reserved for the trial judge.”
Application of the Test
[21] The determination of this review is dependent on the characterization of the process engaged in by the preliminary hearing judge. If her rejection of the inference sought by the Crown resulted from an impermissible weighing of the evidence or choosing between competing inferences, then she exceeded her jurisdiction. If the preliminary inquiry judge’s rejection of the inference sought by the Crown was the result of a consideration of the totality of the evidence and a determination of its sufficiency, there is no jurisdictional error.
[22] In this case, there was direct evidence of the shooting of Daley, Youssif and Rodgers. There was no direct evidence of the identity of the shooter or shooters. The basis for the discharge was that there was insufficient evidence of identity.
[23] The preliminary inquiry judge found that a reasonable trier of fact could draw the following inferences:
(1) that the respondents had entered into a joint venture to ambush Youssif and his friends with a gun;
(2) that Rochester’s car was the vehicle visible by its headlights that pulled up from the south just before the shooting; and,
(3) that handguns are easy to conceal.
[24] While not specifically articulated, the preliminary inquiry judge appears from her analysis and conclusion to find that a reasonable trier of fact could draw the inference that shots fired from the 9mm Browning handgun killed Mr. Daley and wounded Mr. Youssif and Mr. Rodgers.
[25] On the record, and on the basis of the findings of the preliminary inquiry judge, there was, in this case, evidence of motive, means and opportunity to commit the offences. There was evidence that the respondents were present, had armed themselves and set out, in concert, to ambush the Daley group.
[26] The critical issue for the preliminary inquiry judge and the focus on this review is the evidence that the shots that killed Mr. Daley and injured Mr. Youssif and Mr. Rodgers were fired from a gun that was not connected by direct evidence to the respondents. As noted above, the preliminary inquiry judge discharged because of what she characterized as a ‘fundamental flaw’ in the chain of reasoning advanced by the Crown, saying:
However, there is no evidence connecting any of the defendants present at the plaza at the time of the shooting to either the Glock or the Browning pistols. This absence takes on heightened significance when considered with the fact that the only firearm that was connected with the defendants was not used. I recognize that handguns are easy to conceal. Nonetheless, I believe that it would be conjecture to conclude from these facts that Napoleon Rochester, Arraf Kassim or Rohan Shiwshankar fired the Browning pistol that killed Daley or that the other defendants were aware of a handgun and its intended use.
[27] While her conclusion is framed as a finding that the evidence was insufficient to support the inference, I find that the preliminary inquiry judge effectively chose between competing inferences or weighed the evidence when she discharged the respondents. In doing either she exceeded her jurisdiction.
[28] From the evidence that a gun other than the sawed off shotgun was used to kill Mr. Daley and injure Mr. Youssif and Mr. Rodgers, two possible inferences arise:
(1) Although the respondents had planned to ambush the Daley group with a gun, before they fully executed the plan another person used the Browning handgun to shoot at the Daley group; or,
(2) The respondents had planned to ambush the Daley group with a gun and carried out their plan using the Browning handgun, although, unlike the sawed–off shotgun, the Browning was not visible on camera.
In discharging the respondents, the preliminary inquiry judge rejected the inference favourable to the Crown and preferred the competing inference.
[29] An alternative characterization of the reasoning process is that the preliminary inquiry judge weighed the evidence and the weighing went beyond the limited weighing described in Arcuri. The preliminary inquiry judge had already concluded that there was evidence that the respondents had motive, means and opportunity to commit the offences. She found that there was evidence to support the inference that they set out to commit the offences. She had an obligation to consider all of the evidence, including the exculpatory evidence. However, the exculpatory evidence in this case was given ‘heightened significance’. Effectively, the preliminary inquiry judge weighed the evidence that another gun was used against the evidence of motive, means and opportunity and concluded that the evidence of the other gun negated the probative value of the other evidence. This went beyond limited weighing to determine if the evidence was capable of supporting the inferences sought by the Crown.
Conclusion
[30] I have concluded that the preliminary inquiry judge in this case exceeded her jurisdiction in her determination of the sufficiency of the evidence to justify committal. The application for certiorari with mandamus in aid is granted, the discharges quashed and the matter is remitted to the preliminary inquiry judge for the respondents to be committed on the charges. I have considered the submissions of counsel for Yovidra Shiwshankar that his client can be distinguished from the other respondents in light of the evidence that he left the area before the shooting, but in light of the totality of the evidence, the inference that the respondents planned to ambush the other group and the Crown’s reliance on party liability, I am not of the view that Yovidra Shiwshankar is in a different position from the other respondents.
“Forestell J.”
Forestell J.
Released: January 16, 2013
COURT FILE NO.: CR-11-40000085-00MO
DATE: 20130116
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
ARRAF KASSIM, ROHAN SHIWSHANKAR, NAPOLEON ROCHESTER, ANTHONY NELSON and YOVIDRA SHIWSHANKAR
Respondents
reasons for decision
Forestell J.
Released: January 16, 2013