R. v. Kelly, 2015 ONSC 3536
COURT FILE NO.: CRIM(P) 700/14
DATE: 20150602
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Calsavara and C. Henderson, for the Crown/Respondent
Respondent
- and -
KMAR KELLY
V. Israel and A. Morphew, for the
Applicant
Applicant
HEARD: May 29, 2015
RULING ON APPLICATION FOR A DIRECTED VERDICT
Justice Thomas A. Bielby
[1] At the completion of the Crown’s case counsel for the accused put before the court an application for a directed verdict submitting that the evidence lead by the Crown falls short of the mark necessary to place the matter before the jury.
[2] Kmar Kelly is charged with manslaughter. On April 16, 2011, at the Rozz Banquet Hall (the Rozz) in Brampton, Ontario, Kearn Nedd was shot and killed during an attempted robbery of an illegal poker tournament. It has always been argued by the Crown that Kmar Kelly was the getaway driver and thereby a party to the offence.
[3] Most of the evidence provided by the Crown is circumstantial in nature. The Crown relies heavily on the cell phone records related to the number 289 921 8019 (8019) which it is submitted is associated with the accused, Kmar Kelly. Based on the phone records it is alleged by the Crown that the 8019 phone was, at the time of the robbery, in use in the vicinity of the Rozz and, at the time of the attempted robbery, utilized the cell tower closest to hall.
[4] Further it is submitted by the Crown that subsequent to the robbery and by tracking the cell towers utilized by the 8019 phone, the phone moved from the vicinity of the Rozz to the Trillium Hospital, where one of the robbers, Gabriel Owusu, sought treatment for a gunshot wound. The Crown submits that Kmar Kelly was in a car rented by him, a Honda Civic and drove the robbers from the area of the Rozz and drove Owusu to the hospital.
[5] A leading authority on directed verdicts is R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, the judgment of the court being delivered by McLachlin C.J.C. From paragraph 21 I quote:
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 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…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.
[6] As in the case before me the Court in Arcuri had to consider the test in regards to circumstantial evidence. From paragraph 23 I quote:
The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence - may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed…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.
[7] R. v. Foster, [2008] O.J. No. 826, is a decision of C. Hill J. of the Ontario Superior Court of Justice, in a case where at issue was the preliminary hearing judge’s discharge of Mr. Foster. At paragraph 31 therein the learned judge sets out the role of the reviewing court.
[8] At subparagraph 7, it is stated that:
The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offence charged – even if only a scintilla of evidence.
[9] In subparagraph 8, the following is stated:
As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence.
[10] Finally from subparagraph 10 I quote:
In circumstantial evidence cases, there may exist not one, but a range or field of reasonable inferences which may be drawn…A preliminary inquiry justice acts in excess of jurisdiction where he or she chooses from amongst competing or alternative reasonable inferences.
[11] What I take from these authorities is that the inferences the Crown will ask the jury to draw must be reasonable and that to determine reasonableness I must, to a limited degree, weigh the evidence.
[12] With those general statements of the law in mind a more detailed review of the evidence is required.
[13] On April 16, 2011, a robbery was attempted at an illegal poker tournament held at the Rozz, 200 Advance Blvd. in Brampton. It was the evidence of Nirm that the plan for the robbery was initiated by Brian Funes. Nirm was to be a player at the tournament and was solicited by Funes to be the “inside guy” who would pass on information as to the commencement time of the tournament, the location of the cash and as to what security measures and personnel were present.
[14] Apart from Brian Funes, Nirm could not identify any other parties to the robbery nor did he identify anyone, other than Funes, on the other end of any of the phone contacts he made or received on April 16, 2011, just prior to the robbery. Nirm testified that did not know Kmar Kelly nor did he recognize him.
[15] At approximately 2:50 pm, on April 16th a man with a gun entered the hall and demanded money. A struggle ensued between the gunman and the tournament organizer, Sam Parker. A patron, Kearn Nedd, went to the aid of Mr. Parker. An accomplice of the gunman in the hall had remained in the parking lot, just outside of the door to the hall and after trouble started, repeatedly fired his gun through the door and into the hall. As a result, the gunman in the hall was wounded and Mr. Nedd was shot and killed.
[16] The two men aborted the robbery and were observed fleeing the Rozz and running across Dixie Road.
[17] Within a half hour of the robbery, Marcus Owusu attended at the Trillium Hospital in Mississauga and sought treatment for a gunshot wound.
[18] As already stated, it is alleged that Kmar Kelly was operating a Honda Civic he had rented from Corporate Rent a Car (Corporate) on April 11, 2011, and that the “would be” robbers, after fleeing the Rozz, got into his rented Honda Civic which then left the scene and ultimately drove Owusu to the hospital.
[19] Mr. Butros, who in 2011 worked for Corporate, confirmed that Mr. Kelly rented the Honda Civic and that the car did, in fact, have tape or sticker residue on the trunk and fender. He also testified that Mr. Kelly had rented cars from Corporate many times. The car in issue was returned on April 29, 2011, by Mr. Kelly and a Toyota Corolla rented in its place.
[20] Nirm arrived at the tournament on April 16th and between his arrival and the robbery attempt sent and received multiple texts, as was the plan. Nirm was provided with three phone numbers by Funes which were to be used to provide the inside information. One of the numbers provided to Nirm was the 8019 number.
[21] The cell phone records filed as exhibits indicate that there were numerous contacts with 8019 and 416 565 4729, the number used by Nirm. These contacts and exchanges utilized a cell tower which was the closest cell tower to the Rozz.
[22] The 8019 number was registered to a Chris Jones but it is alleged by the Crown that this number was associated with Kmar Kelly. A witness, Ali Ali identified the 8019 number as that of Mr. Kelly who he also knew as Smiley.
[23] In fact three cell phone numbers were associated with Kmar Kelly. Many of the individuals referenced in the evidence used multiple cell phones but which were not necessarily registered in their own names.
[24] On a phone seized from Gabriel Owusu the number 8019 was in the stored contacts under the contact name of, “K”. In the same contact list is another number stored under the name of “Kmar”.
[25] In the twenty or so minutes after the robbers fled the Rozz it is alleged by the Crown that the 8019 number can be tracked, via cell towers, from the cell tower closest to the Rozz to a cell tower adjacent to the Trillium Hospital. The 8019 phone contacts registered in the vicinity of the hospital was at or about the same time as Mr. Owusu first entered the hospital for treatment of a gunshot wound.
[26] There is also evidence that Mr. Kelly was stopped by the police in both Hamilton and Toronto for reasons not related to the charges before this court and both times he was driving the Honda Civic in question. The Hamilton traffic stop was on April 26, 2011, and the cell phone number ending in 8019 utilized a cell tower in Hamilton in and around the same time.
[27] Mr. Owusu could not be identified at the scene of the attempted robbery as the one who entered the hall and demanded the money because that individual had his face covered. However he can be identified as the person who attended at the hospital shortly after the robbery attempt, with a gunshot wound. It is open to the jury to draw the inference that Mr. Owusu was one of the robbers.
[28] In regards to the other robber, the one who remained in the parking lot and fired through the door, the DNA matching that of Marcus Alexis was found on the gun from which was fired the bullet that killed Mr. Nedd. Mr. Alexis’ DNA was also found on the track pants that were worn by Mr. Owusu when he entered the hospital. An inference can be drawn that Mr. Alexis was the robber who remained in the parking lot.
[29] During the attempted robbery the robber we can infer was Owusu, was said to be wearing a hoodie and jeans, clothes not worn by him when he attended the hospital which included the track pants.
[30] The Honda Civic in issue was seized by the police for forensic analysis and blood identified as Owusu’s was found in the upholstery of the driver’s side back seat.
[31] Clearly the case against Mr. Kelly is largely circumstantial, largely dependent on the cell phone records. There is no direct evidence placing Mr. Kelly in the Honda Civic at or near the scene of the crime, or at any time, on April 16th. In fact the direct evidence of one Crown witness, Mr. Mark Cousins, is to the contrary
[32] Mr. Cousins is a truck driver and on April 16, 2011, was operating his truck in in the vicinity of the Rozz. He witnessed two men run from the direction of the Rozz and across Dixie Rd and then down the side of a commercial building. He testified that he saw the two men get into a car parked behind the building. He testified that one of these men got in the driver’s seat and the other into the front passenger seat.
[33] Shortly thereafter Mr. Cousins was at a stop light at the intersection of Tomken Rd and Advance Blvd, and the car he saw the two men get into, pulled up to the left of his truck. Mr. Cousins was able to look down from his cab into the back seat of the car and testified that no one was in the back seat. He was not sure of the make or model of the car other than it was dark in colour.
[34] Mr. Cousins did notice sticker or tape residue on the trunk and right rear fender. This evidence was important in that the evidence suggests the Honda Civic rented by Mr. Kelly has been identified as having this sticky residue on the trunk and fender.
[35] However, since the Crown has never alleged that Kmar Kelly was either one of the two gunmen at the Rozz, Mr. Cousins’ evidence leads to the conclusion that there was no third party driver in the car used to get away from the scene of the crime. The direct evidence of Mr. Cousins is that the car had only two occupants, the two males seen running away from the Rozz.
[36] The Crown submits that it is open to the jury can draw inferences necessary to lead to the guilt of Kmar Kelly. He rented the car in question. He is associated with the 8019 phone. The phone was in use in the area of the Rozz in the hours leading up to the robbery. After the robbers fled the Rozz the 8019 phone can be tracked from the area of the Rozz to the area of the Trillium Hospital where Owusu was treated for a gunshot wound. It is submitted that it can be inferred that Kmar Kelly was driving the Honda Civic and had the 8019 in his possession and used the phone in regards to the robbery.
[37] However, these inferences that the jury would be asked to make by the Crown, based on circumstantial evidence, contradicts that of Mr. Cousins, who was the only witness on April 16, 2011, who actually saw the getaway car.
[38] The Crown submits that it is open to the jury can to find that Mr. Cousins must have been mistaken in his observations as to the lack of a third party driver in the car.
[39] The defence submits that for the purposes of this application the court cannot assess the direct evidence of Mr. Cousins and must treat the evidence as credible and reliable.
[40] It is submitted by the defence that in considering this application the court must accept the evidence of Mr. Cousins and the inferences the Crown submits the jury can make are not reasonable. No third party was an occupant of the car used by the robbers to get away from the scene. The primary facts have not been established which would allow the jury to draw the necessary inferences which would lead to guilt.
[41] The defence submits that there is no evidence placing the 8019 phone in in the Honda Civic on April 16, 2011. There is no evidence as to who was using the 8019 phone.
[42] It is submitted by the defence that it can be inferred that in the 20 minutes between the robbery and the attendance at the hospital that Mr Owusu changed clothes and that he would have had the time and opportunity to change cars and/or car seats (from the front seat to the back seat).
[43] In R. v. Munoz, 2006 CanLII 3269 (ON SC), [2006] O.J. No. 446. T. Ducharme J., commencing at paragraph 23, discusses the drawing of inferences. I quote from that paragraph:
Rather the process of inference drawing involves inductive reasoning which derives conclusions based on the uniformity of prior human experience. The conclusion is not inherent in the offered evidence, or premises, but flows from an interpretation of that evidence derived from experience.
[44] At paragraph 34, the learned justice sets out the definition of inference as stated by Justice Watts:
An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances.
[45] Justice Ducharme went on to quote Justice Watt’s admonition that:
The boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a very difficult one to locate.
[46] In paragraph 25, reference is made to R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3rd) 193 (Ont. C. A.), at page 209 as follows:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.
[47] At paragraph 26 the following is stated:
If primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation.
[48] Finally from paragraph 29 I quote:
The courts have repeatedly cautioned against confusing a reasonable inference with mere speculation. Where an inferential gap exists, it can only be properly overcome by evidence.
[49] The inferences that have to be considered must be reasonable and logical, and to determine reason and logic requires me to conduct a limited weighing of the evidence.
[50] I agree with the submissions of the defence that I must take the Cousins’ evidence at face value, that is, without judging the witnesses’ credibility and reliability in my considerations of the inferences the Crown is submitting can be drawn by the triers of fact.
[51] The question to be asked is then does the evidence presented by the Crown fill in all of the inferential gaps?
[52] I conclude that given the evidence in its totality, the inferences submitted by the Crown are neither reasonable nor logical. There remain inferential gaps.
[53] Given the evidence of Mr. Cousins it is not a reasonable inference to conclude that Mr. Kelly was the getaway driver, the premise of the Crown’s case against him. While it is open to the jury to infer that the 8019 number is associated with Mr. Kelly, given the Cousins’ evidence, the only inference that can be drawn in relation to 8019 is that it was in use by someone but it does not lead to an inference that it was utilized by Kmar Kelly while in the Honda Civic and while driving the car used by the robbers to get away from the vicinity of the Rozz.
[54] The primary facts have not been proven upon which the inferences the Crown submits the jury can draw to find guilt have not been established. There remains an inferential gap that has not been bridged between the cell phone number 8019 and Mr. Kelly driving the getaway car.
[55] There is no evidence of a plan that designated Kmar Kelly’s role as the driver. At best what can be inferred is that Mr. Kelly may have been in the area of the Rozz and that he travelled to the vicinity of the hospital. But that does not put him in the car with Alexis and Owusu. The direct evidence of Mr. Cousins is to the contrary.
[56] It is not for me to consider whether Mr. Cousins made a mistake as to his observations of the car and it occupants or whether the jury can conclude he was mistaken. The evidence is to be considered credible and reliable.
[57] If, as argued by the Crown, I am to take the Crown’s evidence at its highest, I cannot discount the evidence of Mr. Cousins.
[58] I agree with the Crown that if the necessary inferences can be drawn, however weak, the matter is to be left with the jury. However the primary facts needed to draw the inferences must be in evidence and the inferential gaps must still be bridged.
[59] I cannot conclude that the inferences the Crown submits the jury can make to determine guilt are reasonable and logical and the application for a directed verdict will succeed on that basis.
[60] Counsel for the accused also submits that there is insufficient evidence to prove the mens rea that must be established to find Mr. Kelly guilty of manslaughter.
[61] Given the findings I have made, I am not required to determine the mens rea issue but will comment on it.
[62] I agree with the Crown that, in criminal matters, mens rea in regards to the knowledge of an accused can be inferred from the facts.
[63] In this case to find Mr. Kelly guilty of manslaughter the Crown would have to establish that there was, in the circumstances, an objective foresight of the risk of bodily harm.
[64] A robbery by definition includes an element of violence. Counsel for the accused concede that a robbery was attempted. There is evidence that both “would be” robbers who attended at the Rozz were armed with handguns. It can be inferred that the use of such weapons creates a foreseeability of bodily harm.
[65] Nirm testified that he presumed that the robbers who entered the hall would have, in his words, “armed weapons”. He testified that had he known they had guns he may have declined participation.
[66] Apart from Nirm’s evidence that Brian Funes came up with the idea of robbing the poker tournament and soliciting Nirm’s help, we have no evidence of the further planning of the tournament and the various roles of the participants.
[67] If in fact Mr. Kelly was the driver, did he know that Owusu and Alexis were armed and if so with what? Two witnesses, Vesy Malamud and Elie Gemael, who saw the robbers arrive at the Rozz did not see the guns initially. It was only after one of the gunmen pulled a gun out of his clothing did Malamud and Gemael become aware that weapons were involved.
[68] There was no evidence lead that Owusu and/or Alexis had a propensity to violence.
[69] However it can also be argued that it was reasonable to conclude that some type of weaponry would be employed given the number of people who would be at the tournament and who would have to be controlled by some threat of harm.
[70] Whether or not the inference as to the necessary mens rea can be drawn will remain unanswered but I will say that there is very little evidence in that regard.
[71] There are two other issues which I need to address. The Crown suggests, for the first time, in their factum, that Mr. Kelly can be found guilty without any finding that he was the getaway driver. It is submitted that his frequent cell phone contacts with the “inside man”, Nirm on the date of the attempted robbery, in and of themselves, would allow a jury to infer that Mr. Kelly was a party to the robbery and its planning.
[72] The Crown submits that they are allowed the flexibility of changing or modifying their theory as to guilt, as the evidence unfolds.
[73] The defence took exception to this modification of the Crown’s theory of guilt arguing that the Crown cannot, at this late stage, change or modify their theory as to Kmar Kelly’s liability. It is submitted that for the last 4 years and certainly through the preliminary hearing and this trial to date, including the opening to the jury, the Crown’s argument has always been based on the premise that Kmar Kelly was the driver of the car used by the robbers to get away from the scene.
[74] I am guided by the decision of I.V.B. Nordheimer J. in R. v. J.S.R., 2008 CanLII 92004 (ON SC), [2008] O.J. No. 5626, in which the learned justice agreed with the general proposition that the Crown can’t be held to any one theory of its case. It may advance different theories based upon the evidence. From paragraph 15 I quote:
I do not quarrel with the basic proposition advance by the prosecution that it cannot be locked into a theory especially if, as the evidence unfolds, it is clear that the original theory cannot be sustained.
[75] However Nordheimer J. qualified that general proposition and from paragraph 17 stated the following:
I believe that there is a point at which the prosecution can be held to the position that it has advanced throughout the proceedings. In other words, there comes a point at which the prosecution cannot alter its position regarding the basis upon which it asserts that an accused person should be found guilty… The thorny issue would be, of course, where that point is reached.
[76] Nordheimer J., at paragraph 19 states:
At this point, I offer as a general proposition that a party to a proceeding who states a specific factual position, knowing that the opposing side will rely on that stated position at trial, ought not to be permitted to resile from that position absent some compelling explanation for the change. If, for example, new evidence is discovered that compels a party to reverse its position, then the party may be allowed to do so. However, even that situation requires that the party give immediate notice to the other side of its intention to change its position.
[77] As in our case, in the matter before Nordheimer J. the prosecution took a clear and unmistaken position on a factual matter (para. 28). The court has a duty of ensuring the accused’s right to a fair trial and it was found that if the prosecution were to be permitted to resile from its stated position the accused’s right to a fair trial would be infringed (para. 34).
[78] On this issue I agree with the defence. There is no suggestion that the evidence in this trial unfolded in a manner not anticipated by the Crown. The evidence of Mr. Cousins was known to the Crown. There was no additional or change in evidence that would require or entitle the Crown to change their theory of Mr. Kelly’s role in the aborted robbery and shooting.
[79] In the matter before me, and until this application, the Crown has alleged that Mr. Kelly was a party to the attempted robbery and shooting as an aider; the person who drove the getaway car.
[80] The defence believed that was the case they had to meet and prepared their defence and cross-examination accordingly.
[81] If this matter had gone to the jury, the Crown’s argument would have been limited to arguing Mr. Kelly’s role as the getaway driver.
[82] This conclusion leads me to another issue. The Crown submits that the jury should be instructed that there are two routes to a finding of guilt. It is submitted by the Crown that Kmar Kelly’s guilt can be considered under sections 21(1)(b) and 21(2) of the Criminal Code of Canada; that is to say Mr. Kelly can be found guilty as an aider and as a party to an unlawful common purpose.
[83] On this point I again agree with counsel for the defence and my opinion really flows from my conclusion at paragraph 81. Given that decision, the Crown is limited to proving the guilt of Mr. Kelly as an aiding party, as the getaway driver, in accordance with section 21(1)(b) of the Criminal Code, which reads:
Every one is a party to an offence who does or omits to do anything for the purpose of aiding any person to commit it.
[84] At paragraph 126, of R. v. Cocks, [2014] B.C.J. No. 1843, a decision of T.M. McEwan J. of the British Columbia Supreme Court, section 21(2) of the Code is discussed. In reference to that section the court states:
The section makes everyone a party to an offence who, having formed an intention in common with one or more others to carry out an unlawful purposed, knew or ought to have known that the probable consequence of carrying out that unlawful purpose was the commission of a different, consequential offence by a confederate. The provision extends party liability to one who neither committed the offence charged nor aided or abetted the principal offender in it commission.
[85] If this matter was to proceed to the jury my charge would only instruct the jury as to the essential elements in regards to Mr. Kelly being an aider, and thereby a party to the offence pursuant to section 21(1) (b) of the Criminal Code.
[86] The Application by the defence for a directed verdict is granted. A verdict of not guilty will be entered and the jury discharged.
Bielby J.
Released: June 2, 2015
CITATION: R. v. Kelly, 2015 ONSC 3536
COURT FILE NO.: CRIM(P) 700/14
DATE: 20150602
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
KMAR KELLY
Applicant
RULING ON APPLICATION FOR
A DIRECTED VERDICT
Bielby J.
Released: June 2, 2015