2015 ONSC 2473
COURT FILE NO.: CR-14-10000056-0000
DATE: 2015/03/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Fathe Ahmed, Mahmood Ahmad,
Mohamed Taha, and Russell Bullock
Accused
Michael MacDonald, for the Crown
John Collins and Joanna Collins for Mahmood Ahmad,
Benjamin Moss for Russell Bullock, and Ismar Horic for Mohamed Taha
HEARD: March 23, 2015
DIRECTED VERDICT APPLICATION
A.J. O’MARRA J.
[1] Mr. Mohamed Taha has applied at the close of the Crown’s case for a directed verdict of acquittal with respect to the three offences he is charged with: that on or about March 19, 2013 he was an accessory after the fact to the offence of robbery; he operated a motor vehicle in a dangerous manner; and he failed to remain at the scene of an accident.
[2] On the evening of March 19, 2013 three armed men entered apartment 3107, 299 Glenlake Avenue, Toronto to rob Richard Kruk of drugs and money. When Mr. Kruk attempted to flee the apartment into the hallway one of the men shot him in the back with a sawed off shotgun. One of the other men shot at him with a 9 mm handgun, but missed. The three assailants fled the apartment. Mr. Kruk survived.
[3] It is alleged that Mr. Taha drove a red Mazda motor vehicle, license number BRAM174 as a get-away vehicle to assist those who had committed the home invasion robbery during which Richard Kruk was shot with a shotgun by one of the perpetrators.
[4] A number of 911 calls were made to the Toronto Police Services following the shooting at approximately 10:27 p.m., March 19, 2013.
[5] James Gauthier, standing out front of his residence in the area of Glenlake Avenue and Oakmount Street, near the apartment building at 299 Glenlake Avenue saw two males run form the rear of the building and jump into the rear seats of a four door red Mazda motor vehicle, then drive away.
[6] Within minutes of the 911 call, a red Mazda motor vehicle was seen travelling southbound on Keele Street south of the Glenlake Avenue intersection. The operator of the motor vehicle made a sharp left turn from the curb lane in front of a TTC bus in the left lane. The bus collided with the driver’s side rear corner of the Mazda, which pushed it around into the northbound lanes. The TTC onboard camera captured the collision at 10:29 p.m. (Exhibit 21).
[7] After a momentary pause the vehicle was seen by witness Marcel Grilo to speed northbound on Keele Street back to the Glenlake Avenue intersection. He observed it turn right, eastbound away from 299 Glenlake Avenue. He saw it come to a stop at the curb about one block away. He observed two people exit the passenger’s side and run southbound and a third person exit the driver’s side and flee north away from the vehicle. He did not know if the person on the driver’s side came from the driver’s door or a rear passenger door on the driver’s side of the vehicle.
[8] Constable Daniel Walker when responding to the 911 shooting call was directed to the area of Glenlake Avenue and Indian Grove to deal with a motor vehicle that had been involved in an accident and believed to have been involved in the circumstances of the shooting. On arrival, he saw a man standing beside the opened driver’s door of the damaged red Mazda stopped at the curb. The video recording from his in-car camera was entered as Exhibit No. 22. Constable Walker directed the man to lay on the ground beside the motor vehicle where he placed him under arrest. The person who had been standing beside the opened driver’s door was identified as the applicant, Mohamed Taha.
[9] After the motor vehicle was seized and searched by the police, keys were located on the driver’s floor area and a rental agreement for the vehicle in the name of Mohamed Taha found in the centre console between the front seats.
Test for a Directed Verdict
[10] The test for a directed verdict is well settled as being the same test to be applied by a judge at a preliminary inquiry in determining whether there is sufficient evidence to commit an accused for trial. As stated in R. v. Charemski, 1998 CanLII 819 (SCC), [1998] S.C.J. No. 23 at para. 2:
The leading case on the issue of directed verdicts is United States of America v Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, which sets out the test to determine whether a case should go to a jury in terms, at p. 1080: “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”. See also R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, at p. 160. In other words, a motion for a directed verdict should not be granted “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”. See Shepard, at p. 1080.
For there to be “evidence upon which a reasonable jury properly instructed could return a verdict of guilty” in accordance with the Shepard test (at p.1080), the Crown must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden. …if the Crown fails to adduce any evidence to discharge the evidential burden on any of these issues, the trial judge should direct a verdict of acquittal.”
Position of the Parties
[11] The position of the applicant is that there is no direct evidence that he was the driver of the motor vehicle or that he was in possession of it at the time it was involved in the accident. Counsel for Mr. Taha argues that for each of the offences charged the Crown must have evidence that Mr. Taha was the driver. Evidence that Mr. Taha was standing outside of the vehicle by the driver’s door is insufficient to place him in the driver’s seat. Moreover, the rental agreement found in the console of the motor vehicle is but a hearsay document. The truth of its contents not having been proven is inadmissible and as such no evidence.
[12] Further, he submits, even if the rental agreement is admissible, taken together with the location of Mr. Taha at a time of his arrest, it is at best a wholly circumstantial case that he was the driver.
[13] Counsel relies on a decision of Molloy J. in R. v. Collins, [2003] O.J. No. 820 on a directed verdict application in a strictly circumstantial case, to apply the rule in Hodge’s case in granting the application. Molloy J. at para. 21 states:
The Crown’s evidence against these two accused is entirely circumstantial. Since 1838, the rule in Hodge’s Case has applied to prevent a conviction based on circumstantial evidence unless the evidence is consistent with the guilt of the accused and inconsistent with any other rational conclusion. Prior to the Supreme Court of Canada’s decision in R. v. Arcuri, there was some confusion as to whether a judge considering a directed verdict in a circumstantial evidence case was required to apply the rule in Hodges’ Case, or whether that was an issue that had to be left to the jury. In Arcuri, McLachlin C.J. (writing the unanimous decision of the full Court) confirmed that the test to be applied in such cases was accurately set out in the dissenting decision in R. v. Charemski, and that the only dispute between the majority and the dissent in that case was as to the result, not the applicable test. It is now clear that where the Crown’s case is based entirely on circumstantial evidence, the trial judge must do some limited weighing of the evidence in order to determine “whether it is reasonably capable of supporting the inferences the Crown asks the jury to draw”, or to put it another way, “whether the evidence, if believed, could reasonably support an inference of guilt”; R. v. Arcuri at para. 23.
[14] In that case Molloy J. weighed the competing inferences and determined that no reasonable jury could possibly conclude that the evidence was consistent only with the accused being in possession of the illicit substance and inconsistent with any other rational explanation. In the result the matter was taken from the jury.
[15] The Crown argues that the evidence of the applicant’s location, standing beside the driver’s door, after other occupants were seen to flee and discard clothing in the immediate vicinity of the motor vehicle together with a rental agreement with respect to the motor vehicle in the name of Mohamed Taha as the renter on its face, found in the centre console of the vehicle is some evidence from which a jury might reasonably infer that Taha was the driver and in possession of the vehicle prior to it being stopped.
[16] The Crown argues that the Hodge’s rule should not be applied on a directed verdict application as Molloy J. did in Collins. It was clearly stated in R. v. Charemski at para. 4 in the majority decision of the Supreme Court that the Hodge’s case rule does not apply on a directed verdict application and the weighing of competing inferences on circumstantial evidence is to be left to the trier of fact:
Where the evidence is purely circumstantial, this Court made it quite clear, at p.161, (in Monteleone) that the issue of whether the standard set in Hodge’s Case has been met is a matter for the jury, and not the judge: “The question of whether circumstantial evidence meets the requirement of the so-called rule in Hodge’s Case…is for the jury to determine. This was settled in Mezzo [Mezzo v. the Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802]” (emphasis added). In other words, whether or not there is a rational explanation for that evidence other than the guilt of the accused, is a question for the jury.
[17] It should be noted as well that the Court of Appeal stated in R. v. Montour, [2002] O.J. No. 141 that a preliminary hearing judge or judge hearing an application for a directed verdict exceeds their jurisdiction if he or she engages in weighing competing inferences. Further, as noted in Charemski whether or not there is a rational explanation for the evidence other than the guilt of the accused is a question for the jury, the trier of fact.
[18] Here, there is evidence from which it can be inferred that the assailants involved in the home invasion robbery fled the scene of the offence in the red Mazda motor vehicle. The operator of the motor vehicle who drove them away was assisting them in their flight. Similarly, there is direct evidence the red Mazda motor vehicle was involved in a collision with the TTC bus and was then seen to leave the scene of the accident. The essential element for the three offences is that there must be some evidence Mr. Taha was the operator of the red Mazda vehicle. The matter turns on whether there is any evidence upon which a reasonable jury properly instructed could find that Mr. Taha was the driver of the motor vehicle.
[19] In this instance, I am not persuaded by the applicant’s argument that there is no evidentiary value in the rental agreement document in Mr. Mohamed’s name located in the Mazda. Nor is it incumbent on the Crown to prove the authenticity of the rental agreement document. It is a document found in the car with information as to the ownership of the vehicle and which bears the name of the applicant as the renter. It is some evidence that Mr. Taha was in lawful possession of the motor vehicle.
[20] The evidence of the rental agreement in combination with Mr. Taha being found standing beside the open driver’s door moments after it was abandoned by three other persons is circumstantial evidence upon which a jury might reasonably infer that he was the operator of the motor vehicle.
[21] The application for directed verdict is dismissed.
A.J. O’Marra J.
Released: March 24, 2015
2015 ONSC 2473
COURT FILE NO.: CR-14-10000056-0000
DATE: 2015/03/24
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
Fathe Ahmed, Mahmood Ahmad,
Mohamed Taha, and Russell Bullock
Accused
Directed Verdict Application
Released: March 24, 2015