ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 2607/12

DATE: 20131105

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

FAMIEN MORRISON, WALID OMAR AND KENDALL KAMAL

Respondents

B. P. McGuire and D. D’lorio, for the Crown

R. Valentine, for the Respondent, Morrison

M. Wyszomierska, for the Respondent, Omar

C. Cahill, for the Respondent, Kamal

HEARD: September 10 – 12, 2013

REASONS FOR JUDGMENT

ON APPLICATION FOR WRIT OF MANDAMUS

WITH CERTIORARI IN AID

DALEY J.

I – Introduction:

[1] On January 24, 2011 Shadi Taleb (“Shadi”) was killed outside his family’s home in Mississauga.

[2] Following a criminal investigation four men were charged with first-degree murder in his death. A fifth male youth alleged to be involved fled Canada. The four men charged with his murder that were Shawn Cargioli (“Cargioli”), Famien Morrison (“Morrison”), Walid Omar (“Omar”), and Kendall Kamal (“Kamal”).

[3] The Crown sought a committal to trial of all four men on first degree murder, on the basis that the killing was carried out in circumstances involving an unlawful confinement: s. 231(5) Criminal Code, R.S.C., 1985, c.C-46 (the “Code”). The Crown did not assert that the killing was planned and deliberate.

[4] A 13 day preliminary inquiry was conducted before Botham J. during which counsel for Cargioli conceded that he be committed to trial on constructive first degree murder based on a statement as to his involvement in the killing, which he is alleged to have made to a non-accused person.

[5] The justice declined to commit the accused Morrison and Kamal to trial on first degree murder, but did so for second degree murder.

[6] She determined that there was no evidence upon which Omar could be committed to trial on first degree murder or on any included offences, and as such he was discharged.

[7] The Crown applies for a review order by certiorari and mandamus on the basis that the justices’ decision not to commit Morrison, Kamal and Omar, on first degree murder is founded on jurisdictional errors.

II - Factual Circumstances:

(a) Background

[8] Five males including Cargioli, Morrison, Kamal and a young male person, all arrived at Shadi’s home in Kamal’s vehicle on the evening of January 24, 2011. It is the Crown’s position that Omar was the fifth man involved.

[9] Upon arriving at Shadi’s home, Shadi was outside of the home shovelling snow from the driveway.

[10] Shadi’s mother Omaya Taleb (“Omaya”) was inside the home awaiting the return of her husband Mahmoud Taleb (“Mahmoud”) from work and her other son Mohammed Taleb (“Mohammed”) from school.

[11] The evidence at the preliminary hearing showed that five males arrived at the Taleb residence in a vehicle driven by Kamal, which pulled into the driveway. A violent confrontation occurred near the front of the home during which Shadi was struck on the head and two stabbings were attempted through the back of his winter jacket. The jacket was removed near the front of the house.

[12] Shadi suffered a blow to his head and a cut on his face as well as 11 stab wounds in his back and died at the end of the alleyway separating his home from the neighbour’s home.

[13] During this time Omaya heard noise from the alleyway and went outside to check on Shadi whereupon the men in the alleyway chased her back into the house. She was assaulted within the house and held while the men searched the house. One man remained outside while Omaya was held in the house and the search was conducted.

[14] Upon her husband and son returning home, the five men left in Kamal’s vehicle and Omaya made a 911 call for assistance.

[15] Shadi’s father found him dying at the end of the alleyway. He was still alive when he reached him, however he was unable to speak.

[16] Bloodstains were located and identified as Shadi’s blood. These were identified on the walls of both the Taleb home and the neighbouring house down the alleyway as well as on the wooden gate at the end of the alleyway where Shadi’s body came to rest.

[17] Shadi’s body was found at a distance of approximately 45 feet from where his jacket was found at the front of the house.

[18] Cargioli was committed to trial on first degree murder based on evidence given by a non-accused who stated that Cargioli had said “Shadi has been dragged to the side of the house.”

[19] It is the position of the Crown that while that evidence is not admissible against Cargioli’s co-accused, forensic evidence gives rise to an inference that Shadi was dragged from the front of the house, where his coat had been removed to the point at the end of the alleyway, where he came to rest and this activity constituted unlawful confinement separate from the killing but part of the same transaction.

[20] On this basis it is the Crown’s position that Morrison, Omar and Kamal should have been committed to trial on first degree murder for the killing of Shadi and based on the unlawful confinement of both Shadi and Omaya, in accordance with s. 231(5) of the Code.

(b) The Events of the Evening of January 24, 2011

[21] After asking Shadi to shovel the driveway, Omaya went to the living room to watch television. Shadi put on his winter jacket and went outside and shortly after this, Omaya heard noise from outside the house. She proceeded to the front door of the house and looked outside but could not see Shadi or anyone else at the front of the house. She returned inside.

[22] Shortly following this, being concerned she went outside again and looked to the alleyway separating her home and the neighbour’s house. She testified that she saw a “bunch” of people at the end of the alleyway, which was in darkness.

[23] The investigating police measured the alleyway’s width as four and a half feet and its length from its mouth to the gate at its end as 45 feet.

[24] Upon going outside Omaya called out her son’s name and in response someone stated “your son got stabbed” and at this point one of the men ran to her and said “don’t yell, don’t scream.”

[25] Omaya ran into the house, followed by the men. She attempted to close the door to the house, but the men pushed the door open and they then entered the vestibule area near the front door.

[26] At this time Omaya was punched in the face by one individual and struck on the head with the butt of a handgun by another. The men told Omaya to “shut up, don’t talk, don’t look at us, don’t talk.”

[27] She was then forced to sit on a chair with her head held down between her legs by one of the men. The others began the search of the house. She testified that four to five men entered and spread out through the house.

[28] Upon her husband arriving home, being unaware of what had happened, the men left the house. She told her husband that Shadi had been stabbed and that he was between the houses.

[29] Mahmoud testified that he arrived home at approximately 10:20 p.m. and observed a beige Toyota sedan with black panelling parked in their driveway. At this time his son Mohammed also arrived home from school.

[30] Mahmoud observed a young male standing beside the Toyota and asked him as to why he was there. This male began screaming and yelling towards the house.

[31] Mahmoud then observed people leave the house and five men got into the Toyota which pulled out of the driveway and drove off.

[32] After going into the house to speak with Omaya, Mahmoud then went to the alleyway where he found Shadi on the ground about two to three feet from the wooden gate at the end of the alleyway. He held his son in his arms. He was alive but could not speak.

[32]

(c) The Forensic Evidence

[33] In response to the 911 call, police and paramedics arrived at the scene; however, Shadi had already died.

[34] Forensic officers attended at the scene including Detective Steve Lamb and Constable Rob Hofstetter, a bloodstain pattern analysis expert.

[35] Both officers gave evidence at the preliminary inquiry with the aid of photographs which were included in the Application Record at Tabs 8 and 9.

[36] The evidence offered by forensic pathologist Dr. Toby Rose and Constable Hofstetter was that a struggle involving Shadi began when he was wearing his jacket and while he was located near the front of the house. One of the assailants wielding a knife attempted to stab Shadi in the back; however, the knife cut into the back of his jacket in two locations but did not penetrate the insulated filling of the jacket.

[37] The jacket was found on the ground near the front of the house with the sleeves inside the armholes, suggesting that the jacket had been pulled off.

[38] Shadi had been struck causing bleeding prior to his jacket being removed, which was evidenced by the presence of blood spatter stains on both the inside and outside of the jacket including the sleeves, which were found pulled inside out.

[39] It was the opinion of Constable Hofstetter that the spatter stains of Shadi’s blood would have to have been deposited on the exterior of the sleeves of the jacket prior to the sleeves been rolled up inside the jacket.

[40] It was the evidence of Dr. Rose that Shadi had two injuries that could have deposited the spatter bloodstains on his jacket, namely an L-shaped wound on the top of his head and a stab wound to his face where a knife penetrated through his nose, through his mouth and down into the side of his neck.

[41] A kitchen knife was located by the police in front of the house a few feet away from where Shadi’s jacket was found. The knife was measured by the police and the length of the blade was consistent with the cuts in the back of the jacket.

[42] There was also evidence of recent damage to the left arm of the jacket, consistent with being pulled apart at the seams by force, as well as in three other areas showing recent seam separation caused by a pulling force.

[43] The jacket had been removed from Shadi prior to the 11 stab wounds to his back.

[44] Evidence of large transfer stains from Shadi’s blood was found on both of the exterior walls of the houses on either side of the alleyway. There were also projected blood stains found on those walls and on the wooden gate at the end of the alleyway which were consistent with blood projected as a result of stabbing motions.

[45] Evidence of Shadi’s blood was found on the east exterior wall of his house. Constable Hofstetter testified that there were drip stains on this wall caused by blood falling from a height as well as transfer stains on both the east and west walls along the alleyway. A transfer stain is caused when a bloody object makes contact with another surface transferring some of the blood onto that surface.

[46] There were two transfer stains of the deceased’s blood on the east wall at approximately 27 feet down into the 45 foot alleyway, both at a height of just over four feet.

[47] Below the transfer bloodstains on the east wall was a spatter stain or projected blood stain. Spatter stains are caused when some amount of force is applied to a blood source. A larger transfer stain was detected further down the east wall at a height of approximately one and a half feet from the ground.

[48] As to the west wall, on the neighbouring house, there were more transfer bloodstains and spatter stains. At approximately 36 feet from the mouth of the alleyway there were a series of bloodstains from Shadi’s blood. These included a series of projected bloodstains starting at less than a foot off the ground, transfer stains and a linear cast-off pattern of blood.

[49] A cast-off stain is created when a bloody object like a knife is swung causing blood to come off and hit the wall in a linear pattern. A cast-off pattern of blood was present on the west wall at approximately 35 feet down the alleyway and it stretched along a portion of the wall.

[50] Shadi’s body came to rest at the end of the alleyway, approximate 45 feet away from where the initial struggle appears to have occurred. The wooden gate at the end of the alleyway had another cast-off bloodstain pattern from Shadi’s blood. He was found by his father with his back on the ground and his head leaning against the west wall.

(d) Evidence as to the Identity of the Fifth Suspect at the Scene

[51] As was determined by the justice, there was sufficient evidence to commit Cargioli, Morrison and Kamal to trial on murder; however, the evidence as to the identity of the fifth suspect was entirely circumstantial and it was urged by the Crown that all the circumstantial evidence pointed to Omar as that person.

[52] There were several items of circumstantial evidence potentially connecting Omar to the scene of the killing.

[53] Hair samples found in Kamal’s vehicle were seized by the police a few months after the occurrence, and these were identified by DNA analysis with a very high degree of certainty as being from Omar.

[54] Two weeks prior to the killing in a text exchange Omar told Morrison that he wanted a “mission” (robbery) and in the text exchange the details of a robbery are discussed and are referred to as a “mission.” Cargioli and Morrison specifically referred to a robbery of Shadi in their text communication.

[55] Omar’s cell phone records for the relevant time showed that in January, 2011 he and Morrison had telephone contact 99 times and text contact 51 times. Omar had telephone contact with Cargioli 105 times.

[56] The justice concluded that Cargioli, Morrison and Kamal went to Shadi’s home on the evening in question and it would be open to a jury to find that the three men were there to commit a robbery.

[57] Notably, the justice further found in her reasons at para. 23 that:

Given the evidence of frequent phone and text communication demonstrating a close association with these three men it would be open to a jury to find that it is only reasonable that the details of how the robbery was to be accomplished would have been discussed and the participants would have been aware that weapons were going to be potentially used.

[58] Omar’s cell phone records disclosed that he had telephone contact with both Morrison and Cargioli on January 24, 2011. At 7:50 p.m. that evening Omar called Cargioli in a call that lasted just under a minute. At 8:28 p.m. Omar received a call from Morrison that lasted 34 seconds, followed by three more short calls over the next ten minutes. At 8:58 p.m. Morrison made an attempt to reach Omar and according to the cell phone tower data, Omar was in Scarborough at the time of all of the calls with Cargioli and Morrison.

[59] The next phone call occurs at 9:41 p.m. and Omar receives a call from a number he had been in contact with on 18 times in January 2011, and the duration of this call was 22 seconds. At the end of that call Omar’s phone was no longer located in Scarborough and it was determined that it was using a cell tower at Burnhamthorpe and Cawthra Road in Mississauga, approximately three to four km from the Taleb residence.

[60] At 9:43 p.m. Omar’s cell phone is used to call Turelle Turney (“Turney”) for a duration of two minutes via a cell tower near the Taleb residence. Turney testified that he and Matthew Smith (“Smith”) planned a “mission” (robbery) with Cargioli and some of his associates to rob Shadi of guns he was thought to have. Turney and Cargioli had been in contact with each other and Smith earlier in the evening, during which time Cargioli used his own phone to communicate with them.

[61] After 9:43 p.m. Omar’s cell phone places a further call to Turney’s phone at which time Omar’s phone is using the closest tower to the Taleb residence. This call was placed at 9:58 p.m. and lasted in excess of seven minutes. The next use of the phone occurs when Omar receives a call at 10:12 p.m. which lasted 79 seconds, and again Omar’s phone continues to use the closest tower to the Taleb residence.

[62] At 10:18 p.m. Omar’s phone is used to call Smith for a duration of 87 seconds via the cell tower closest to the Taleb’s residence. Smith testified that this was actually Cargioli who he was speaking with regarding whether he was sure that a shotgun and drugs were in the house. Following that conversation, Omar’s phone is used to place a call to Turney, which lasts over four minutes and again this call uses the same cell tower near the Taleb residence.

[63] Turney testified that he called Omar’s phone after the robbery had occurred at 5:00 a.m. the following morning. Turney testified that he did not know Omar, and that he called Omar’s phone in an attempt to reach Cargioli. He testified that when he placed the call, an individual he did not know answered the phone and stated to him that Cargioli wasn’t there, last night was “hectic” and that Cargioli was “all right.”

III - Reasons for Not Committing to Trial on First Degree Murder:

[64] With respect to whether there was any evidence of unlawful confinement the justice noted in paras. 52-54 inclusive as follows:

Unlawful confinement was defined in Gratton by Cory, J.A. as physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another. The offence necessarily requires both the intention to confine and the act of confinement or attempted confinement.

Although the officers discover that the gates to the backyard could not be opened due to falling snow, there is no evidence that any of the parties to the intentional killing would have been aware of that fact. There is no evidence of actual confinement beyond the inability to open the back gate.

I am not satisfied that the evidence led at this preliminary hearing supports the inferences sought by the Crown, namely that there was an intentional unlawful confinement of Shadi Taleb separate from the actual killing. Therefore, Famien Morrison and Kendal Kamal will be ordered to stand trial on second degree murder. Shawn Cargioli will be ordered to stand trial on first degree murder.

[65] As to the charge in respect of Omar, the justice noted that the case against him was completely based on circumstantial evidence and she stated in para. 55 as follows:

The Crown’s case against Walid Omar is completely circumstantial. There is no direct evidence that he participated in the planning of the robbery or that he was present at the Taleb’s residence. Obviously if the evidence called by the Crown does not support an inference that he was present at the house, there is no basis for committal on any charge arising from Shadi Taleb’s death.

IV - Position of the Parties:

[66] It is the position of the Crown that the justice committed jurisdictional errors by:

(1) failing to consider the whole of the evidence before discharging the accused;

(2) failing to recognize inferences available to the Crown which could constitute some evidence of one of the elements of the offence; and

(3) by preferring an inference favourable to the accused over an inference favourable to the Crown.

[67] In respect of the discharge of Morrison and Kamal on first degree murder, the Crown also asserts that the justice exceeded her jurisdiction in concluding that there was no evidence of unlawful confinement and in coming to that conclusion preferred the inference that Shadi was not dragged from the front to the side and rear of the house where he was killed. Further, it is the position of the Crown that the justice failed to consider the alternative basis upon which the Crown sought committal of the respondents on first degree murder, namely the evidence with respect to the unlawful confinement of Omaya.

[68] As to the discharge of Omar, it is the position of the Crown that the justice exceeded her jurisdiction by preferring a chain of innocent inferences over other inferences that were consistent with Omar being in his possession of his phone, travelling with four others to the Taleb’s residence and taking part in the actions resulting in the killing of Shadi.

[69] On behalf of Morrison it was submitted that although he appears to have been at the scene, there is no evidence of his intention to commit a home invasion robbery.

[70] Further, it is submitted on behalf of Morrison that there was no unlawful confinement either of the deceased or his mother.

[71] It was submitted on behalf of Kamal that there was no evidence of unlawful forcible confinement with respect to Shadi and if any evidence appeared in the record, any forcible confinement was inherent in the act of killing and as such, did not constitute unlawful forcible confinement as referred to in s. 231(5) of the Code.

[72] As to the position of the Crown that Omaya was unlawfully confined, it was submitted on behalf of the respondents that this was not part of the Crown’s submissions on committal but was only raised in reply submissions. It was further submitted on behalf of the respondents that although a murder and forcible confinement can involve separate victims, a murder of one victim that occurs first and is followed by forcible confinement of a second victim does not come within s. 231(5)(e) of the Code.

V - Analysis:

[73] In his decision in R. v. Foster, [2008] O.J. No. 827, Hill J. provides a most thorough review of the governing principles relating to the jurisdiction of a preliminary inquiry judge and that of a court engaging in certiorari review. Many of the principles considered in that case are apt to this one; also see R. v. Streeter, 2013 ONSC 1952 (Hill J.).

[74] The reviewing court on the certiorari application in respect of a committal for trial exercises limited authority for intervention:

(i) the court may, in its discretion, provide a remedy for jurisdictional error alone;

(ii) the reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there was any evidence before the committing justice upon which acting judicially he or she could form an opinion that the evidence is sufficient to put the accused on trial; and

(iii) supervisory review is not permitted to overturn a committal decision merely because the preliminary inquiry judge “reached a conclusion different from that which the reviewing court would have reached:” R. v. Russell, at para. 10.; See: Foster, at para. 31(1); R. v. Hawley, 2012 ONCA 528.

[75] While an error in law made by a preliminary inquiry judge, when acting within the court’s jurisdiction does not affect the preliminary inquiry judge’s jurisdiction in the sense that the court has the right to be wrong and there is no closed list of jurisdictional errors, the following have been determined to constitute such errors:

(i) failing to consider the whole of the evidence in deciding whether there is some, as opposed to no evidence;

(ii) applying an incorrect test for committal and thereby deciding an issue reserved to another forum; and

(iii) engaging in impermissible weighing of competing inferences: Foster, at para. 31(2).

[76] In the event a reviewing court finds a jurisdictional error on the part of the preliminary inquiry judge, the court is to assess the sufficiency of the evidence in order to determine the appropriate remedy: Foster, at para. 31(3).

[77] Section 548(1) of the Code provides that when all the evidence has been taken by the justice he or she shall, if in his or her opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial.

[78] Where there is sufficient evidence upon which a reasonably and properly instructed jury could find guilt, the preliminary inquiry judge must commit to trial: R. v. Sazant, 2004 SCC 77, 2004 S.C.C. 77, [2004] 3 S.C.R. 635, at para. 16; R. v. Arcuri, 2001 SCC 54, 2001 S.C.C. 54, [2001] 2 S.C.R. 828. The committal test is the same whether the evidence is direct or circumstantial: Arcuri, at para. 22.

[79] It is not open to the preliminary inquiry judge to assess the quality, credibility and reliability of evidence. Where more than one inference can be drawn from the evidence, “only the inferences that favour the Crown are to be considered”: Sazant, at para. 18.

[80] The prohibition against weighing evidence in assessing the committal question is narrowly modified for when the prosecution adduces circumstantial evidence said to point toward guilt. The preliminary inquiry judge, in determining whether the elements of the offence may be reasonably inferred from circumstantial evidence, is permitted to engage in a “limited weighing” of such evidence to the extent of assessing “the reasonableness of the inferences to be drawn from the circumstantial evidence”: Arcuri, at para. 30.

[81] In circumstantial evidence cases, there may exist not one, but a range or field of reasonable inferences which may be drawn. The ultimate determination as to whether an available reasonable inference ought to be drawn is for the trier of fact – a judge is not to ask whether facts ought to be inferred and is not to make “determinate factual inferences”: Foster, at para. 31(10).

[82] A preliminary inquiry judge falls into jurisdictional error where he or she prefers an inference favourable to the accused over an inference favourable to the Crown or by failing to consider the whole of the evidence. As stated by Hill J. in R v. Coke, [1996] O.J. No. 808, at para. 11:

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. Certainly, where the evidence in question is equivocal, in the sense of ambiguous and uncertain and conjectural in nature, the probative force is of such diminished significance as to be valueless.

[83] The Court of Appeal further considered the limited function assigned to preliminary inquiry judges in its decision in Hawley. The court in considering the function of the preliminary inquiry judge under s. 548 of the Code discussed where that court may fall into jurisdictional error and stated, at para. 10:

In Sazant, McLachlin C.J. provided examples of jurisdictional error at para. 25 of her reasons. These included drawing inferences from the evidence rather than determining what inferences could reasonably be drawn. The distinction is important because if the inferences urged by the Crown are within the field of inferences that could reasonably be drawn, the preliminary inquiry judge must commit for trial even if those are not the inferences that the preliminary inquiry judge would draw.

[84] Reasonable inferences are not necessarily likely or probable inferences. The inference that is most favourable to the Crown must be drawn at the preliminary inquiry stage. Difficult inferences to draw may still nonetheless be reasonable: See: R. v. Dwyer, 2013 ONCA 368, at para. 4.

[85] The process of considering inferences was stated by Doherty J.A. in United States of America v. Huynh, (2005), 2005 34563 (ON CA), 200 C.C.C. (3d) 305, at para. 7:

The process of drawing inferences from the evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence.

[86] As to the reasons expressed by the preliminary inquiry judge, as was stated by Major J. in R .v. Deschamplain, 2004 SCC 76, 2004 S.C.C. 76, [2004] 3 S.C.R. 601, at para. 24; “[s]ilence in the reasons alone may not necessarily be sufficient to justify the intervention of a reviewing court. As this Court has previously held, there must be some rational basis in the record to justify such intervention.” (citations omitted).

[87] Major J. stated further at para. 34 as follows:

It is now plain from Canadian jurisprudence that a trial jud