CITATION: R. v. Greensword, 2015 ONSC 3915

COURT FILE NO.: 469/14

DATE: 2015 06 19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Gregory Hendry, for the Crown

• and -

AMAL GREENSWORD AND ADRIAN WILLIAMS

Michael A. Moon, for Amal Greensword

Maureen Addie, for Adrian Williams

HEARD: June 15, 2015

RULING ON CERTIORARI APPLICATION

FAIRBURN J

Overview

[1] On August 8, 2014, J.J. Keaney J. committed Amal Greensword, Adrian Williams, and Steven Browne for trial on a single charge of first degree murder in the shooting death of Dwayne Thompson on November 1, 2012. A fourth alleged accomplice, Adeyemi Ogunbitan, was discharged. Only Mr. Greensword and Mr. Williams bring an application for certiorari seeking to quash their committal for trial.

[2] The underpinnings for the first degree murder rest on a Crown theory of planning and deliberation. It is said that Mr. Greensword lured the about to be deceased, Mr. Thompson, to 7230 Darcel Avenue, Mississauga, by leading him to believe that Greensword wanted to make a drug purchase. Instead of completing the anticipated drug transaction, Thompson was shot four times, twice in the head and twice in the back. Thompson had two cellphones, jewellery, and $1,125 cash on him at the time he was shot. These items were not taken by the assailants. He was declared dead on scene.

[3] The applicants say that the preliminary inquiry judge exceeded his jurisdiction in committing them to trial on first degree murder. The Crown responds that there was no such error. I find that while the reasons for committal are brief, they reveal a correct understanding of the law and disclose why the accused were committed to stand trial. I find no excess of jurisdiction and dismiss the applications for certiorari.

A Brief Overview of the Preliminary Inquiry Evidence

[4] This was a lengthy preliminary inquiry, with about 22 days of evidence called. What follows is a brief overview of the more salient evidence relating to committal.

[5] The Crown’s case involved evidence from a number of sources. One of the main Crown witnesses was Margaret Warner, who was with Dwayne Thompson during the day leading up to and including his murder.

[6] She provided evidence over three days at the preliminary inquiry. She testified that “Scarface”, who is Mr. Greensword, contacted Mr. Thompson on the day of the homicide. He led Thompson to believe that he wished to purchase drugs and chose the location where the transaction was to take place: 7230 Darcel Avenue. Mr. Thompson, Ms. Warner and another individual, Shawn Edwards, known as “Tooks”, arrived at that location so that the transaction could take place.

[7] As instructed by Scarface, Mr. Thompson proceeded toward the lobby area of 7230 Darcel Avenue. Ms. Warner was with him. As they were walking toward the lobby, Ms. Warner saw “three to four guys running into a white vehicle”. They were black individuals, approximately in their twenties. They were wearing dark clothing.

[8] The men got into the white car and then started “driving very slow”. They were watching Thompson and Warner. Once in the lobby, waiting for Scarface to attend, Ms. Warner said that she saw the white vehicle drive up, stop, and the occupants look into the lobby on a few occasions.

[9] There was a video camera, with a time stamp, trained on the lobby of 7230 Darcel Avenue. Thompson and Warner are seen entering the lobby at 10:13:22 p.m. Ms. Warner testified that when Scarface did not attend, Mr. Thompson decided to leave. They are seen exiting the lobby area at 10:26:50 p.m. Ms. Warner testified that when they emerged from the building and started walking back to Tooks’ vehicle, she saw a very dark black male with a black hooded sweater. He was on the grass by the white car she had previously seen. All of the car doors were open. She then saw a lighter skinned black man with a gun. With him was another lighter skinned black man.

[10] Two of the men went to Thompson: the dark black male and the man with the gun. One of the men held the gun to Thompson’s temple and the other male started feeling Thompson in the stomach area. Ms. Warner heard Thompson say, “No, bro, no, bro, I don’t have anything on me, please don’t.” She then heard a gunshot, Thompson’s body dropped “to the floor”, and then two more gun shots rang out. She started to run and did not look back. She got in Tooks’ vehicle and they left.

[11] For the purposes of the preliminary inquiry, it was agreed that Mr. Greensword and Mr. Williams were captured on video in the lobby area of 7230 Darcel Avenue. Greensword is captured entering the lobby at 10:03:35 p.m. Williams and a third unknown person are captured entering at 10:04:33 p.m. All three of them leave together at 10:11:40 p.m., less than two minutes before Thompson and Warner enter the lobby area. Also caught on video is the white car that travels by the lobby area (consistent with Warner’s evidence) at 10:14:25 p.m.

[12] Ms. Warner was shown the video of the three men (two of whom were admitted to be Mr. Greensword and Mr. Williams) exiting the lobby at 10:11:40 pm. Although she testified that she did not see their faces, because they were wearing “hoods or hats”, Ms. Warner testified that the men on the video were the same ones she saw running toward the white vehicle. After the video of the lobby area was played, the following exchange occurred in-chief:

Q. Ma’am, I understand that outside of the – your – at the time that you made your observations of the – that you indicated three to four black males running towards a white vehicle…

A. Yes.

Q. … were you able to see faces?

A. No. Because they were wearing – they were wearing hoods or hats. So no, I was not. I just saw that they were black and wearing black clothing, dark clothing.

Q. I’m going to ask you the next question. I’m going to ask you to pause before you respond. Okay?

A. Okay.

Q. The three black males that you just saw in the video leaving the building, can you tell us whether that was consistent with what you saw of three to four black males running towards the white vehicle? And I want you to pause.

THE COURT: No. Go ahead. That’s okay.

[Crown Counsel]: No one’s rising.

Q. So perhaps you can answer the question?

A. You’re asking me if those are the three black males that I saw running towards the vehicle? Yes. Is that what you’re asking?

Q. Yes.

A. Okay, then, yes.

[13] She was then asked in cross-examination whether the men she testified about in-chief were the ones that confronted Mr. Thompson just prior to his murder. The following exchange occurred:

Q. …and you didn’t see any details or distinguishing aspects about their faces or anything like that at all; correct?

A. From that point in time, no, I did not.

Q. All right. So there are four guys that come out of the building, and I take it from what you’re saying in your evidence it – is that it’s your belief that the four guys out of the building that – when you first saw come out of the building, you’d believed that three of those four were the ones that you say confronted and shot Mr. Thompson at the location you’ve testified to at this preliminary inquiry?

A. Yes.

[14] If she saw a fourth man running toward the car before she and Mr. Thompson entered the lobby, Ms. Warner did not see him at the time of the shooting. She also confirmed that the white vehicle caught on the video tape was the same white vehicle she saw the men run to, and the same one that the men came from before Thompson was shot. She was again shown the lobby video and the following exchange occurred in-chief:

Q. Pause here. Ma’am, did you see a white vehicle that passed the front of the building?

A. Yes.

Q. Is that the white vehicle you were referring to?

A. Yes. …

Q. And now if we can pause the video. Ma’am, could you tell us what you and Mr. Thompson were apparently pointing to at that moment in the video?

A. The white car that the – those black guys went into and were slowly watching us coming back around. And we’re wondering why it was doing that.

… Continue the video.

…VIDEO PLAYED

Q. And again, we saw the white car pass the window. Again, is that the vehicle you….

A. It sped off.

Q. I’m sorry?

A. Yes, it slowed down and pause and sped off again.

[15] Ms. Warner agreed she told the police that she thought the men she saw running to the vehicle were wearing hats. She also said that she thought the shooter had a “scruffy growth” or “patchy hair” on his face. She thought the shooter was wearing dark clothes and was in his late twenties or early thirties. She also told the police that the person who approached from the driver’s door was “ugly and black and big”. According to the applicants, none of the personal characteristics Ms. Warner used to describe the men fit either Mr. Greensword or Mr. Williams.

[16] The Crown led evidence that Mr. Thompson’s property, including cash, two cell phones and various items of jewellery were not removed from his body after he was killed. Moreover, there was no evidence to suggest that the men who shot Mr. Thompson attempted to harm Ms. Warner.

[17] As for Mr. Browne, for the purposes of the preliminary inquiry, it seems non-contentious that his DNA was found under the deceased’s fingernail.

[18] There was also cellular phone evidence led. It established the fact that the accused were in touch with one another during the daytime and leading up to the shooting which occurred somewhere around 10:30 p.m. on November 1, 2012. Later in the evening, following the homicide, each of Greensword, Williams and Browne’s cellular phones connected to cellular towers close to the residence of the mother of Mr. Williams’ child. The mother’s name is Shenika Doyley. As well, cellular phone evidence placed both Mr. Williams and Mr. Greensword close to 7230 Darcel Avenue prior to the homicide.

[19] There was also evidence linking Mr. Greensword to a white rental car in and around the time of the homicide. Gilbert Johnson, an acquaintance of Mr. Greensword, testified that he rented a white Dodge Avenger vehicle on October 31, 2012 and provided it to Mr. Greensword. At Mr. Greensword’s request, the vehicle was returned a few days later.

The Positions of the Parties

Defence position

[20] The applicants advance four grounds upon which they say the preliminary inquiry judge exceeded his jurisdiction. At their core, the grounds are all related in the sense that they have to do with complaints about a failure to consider the totality of the evidence. They largely focus on what is referred to as identification evidence. I have paraphrased the applicants’ grounds as follows:

(1) the justice failed to consider the totality of the evidence, including identification evidence;

(2) the reasons for committal fail to mention and analyse evidence, including identification evidence, demonstrating a failure to consider the totality of the evidence;

(3) the inferences found and relied upon by the preliminary inquiry judge are deficient because he failed to consider the totality of the evidence; and

(4) the inferences relied upon are unavailable, especially in the area of identification evidence, because there was a failure to consider the totality of the evidence.

[21] In oral argument, counsel concentrated heavily on what are said to be frailties in the identification evidence provided by Ms. Warner. It is the applicants’ position that, as conceded by the Crown, Mr. Browne is not caught on the 7230 Darcel lobby video. They say this is important because Mr. Browne’s DNA is found under the fingernail of the deceased, leading to the inference that Mr. Browne was at least one of the people who accosted the deceased. As Mr. Browne was not on the video containing the image of three men emerging from 7230 Darcel, then Ms. Warner is provably wrong.

[22] As well, the descriptions provided by Ms. Warner to the police, and which she adopted at the preliminary inquiry, do not match Williams or Greensword. Mr. Greensword did not have stubble on his face, was not wearing a hat, and was not a heavy, dark black male. Nor was Mr. Williams.

[23] Given these frailties belying Ms. Warner’s identification evidence, counsel submit that her evidence about who she saw at the car before Mr. Thompson was shot is valueless and, in fact, less compelling than in-dock identification. The applicants argue that the preliminary inquiry judge was duty-bound to turn his mind to these problems with Ms. Warner’s evidence and try to “reconcile” them.

[24] In short, the applicants argue that Justice Keaney failed to take into account all of the evidence. Had he done so, he would have concluded that Ms. Warner could not be correct when she testified that the men she saw on the video were three of the four men that ran to the white car and that three of those men were at the car just prior to the shooting. They say that there is no basis upon which a properly instructed jury could conclude that Mr. Greensword or Mr. Williams were parties to the shooting of Mr. Thompson.

Crown position

[25] The Crown takes the position that the issues raised by the defence are matters for the trier of fact. There is direct evidence that Mr. Greensword and Mr. Williams were at the scene of the shooting. It is conceded that they are on the video leaving the lobby of 7230 Darcel Avenue a short while before the deceased and Ms. Warner arrive. The Crown says this concession is critical to committal as Ms. Warner gave direct evidence that three of the four men she saw running to the car, three of whom she said were on the video, are same men she saw at the white car just before Mr. Thompson was shot. The Crown says that this direct evidence, combined with the other evidence in the case, provides more than a sufficient evidentiary basis upon which to commit.

[26] While Keaney J.’s reasons could have been more detailed, the test is whether they are reviewable. They are and, the Crown adds, unassailable. Keaney J. was required to come to the conclusion he did and commit the applicants to trial on first degree murder.

The Relevant Law

Jurisdiction of the preliminary inquiry judge

[27] The preliminary inquiry is “not meant to provide a forum for litigating the merits of the case against the accused”: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 at para. 20. Rather, a preliminary inquiry judge’s task is narrowly circumscribed by s. 548(1) of the Criminal Code. Where there is admissible evidence upon which a reasonable and properly instructed jury could return a verdict of guilty, the judge must commit the accused to trial: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 [Arcuri] at paras. 1, 21; United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, [1976] S.C.J. No. 106 at para. 8.

[28] While the test for committal remains the same, the task of the preliminary inquiry judge varies somewhat depending on the nature of the evidence advanced by the Crown in pursuit of committal. Direct evidence is that which, if believed, resolves a matter in issue at trial. Circumstantial evidence is that from which the trier of fact infers the existence of a fact in issue at trial: Arcuri at paras. 22-23.

[29] Where direct evidence is advanced, the task of the preliminary inquiry judge is “straightforward”: Arcuri at para. 22. When it comes to direct evidence, the sole question is whether the evidence is true. This is not a question to be resolved at the preliminary inquiry. Whether evidence is true or not is a matter that falls within the sole jurisdiction of the trier of fact at trial. As such, where there is direct evidence as to each element of the subject offence, then the preliminary inquiry judge must commit the accused to trial.

[30] When it comes to a case built partially or wholly on circumstantial evidence, the preliminary inquiry judge’s task is “somewhat more complicated” because there must be a “limited weighing” of the evidence in order to determine the issue of committal: Arcuri at para. 23. This requires the judge to focus on whether the evidence is “reasonably capable of supporting the inferences” suggested by the Crown: Arcuri at para. 23.

[31] The limited weighing task is not, though, an invitation to assess the credibility, quality, or reliability of evidence at the preliminary inquiry: R. v. Pinnock, [2007] O.J. No. 1599, 86 W.C.B. (2d) 661 (Sup. Ct.) at para. 42; R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 [Deschamplain] at para. 15; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, [2004] S.C.J. No. 74 [Sazant] at para. 18; Arcuri at para. 30. Rather, the limited weighing function of the preliminary inquiry judge “involves an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence adduced at the inquiry considered as a whole”: R. v. Hall, 2015 ONCA 198 [Hall] at para. 5.

[32] Competing inferences must not be weighed at a preliminary inquiry: Deschamplain at para. 15. Indeed, if more than one inference arises from the circumstantial evidence, only the inference that favours the Crown’s case can be considered: Sazant at paras. 18, 25. If there are reasonable inferences to be drawn that favour the Crown’s case, then the preliminary inquiry judge is jurisdictionally bound to draw those inferences, even if they are not the inferences that would be drawn if he or were sitting as a trial judge: R. v. Hawley, 2012 ONCA 528 at para. 10.

[33] In terms of reasons, R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 [Sheppard] sets out the responsibilities of a judge. She or he must provide sufficient reasons to demonstrate an understanding of the nature of the case and that it was the one that was argued and decided. This has been referred to as “a functional context-specific approach to the adequacy of reasons”: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 [R.E.M.] at para. 15. Ultimately, reasons serve three main purposes: (1) they inform an accused why a certain result has been arrived upon; (2) they provide for a level of public accountability; and (3) they permit the ability for review: Sheppard at para. 46; R.E.M. at para. 17.

[34] For purposes of a preliminary inquiry, as long as an accused understands the reasons for why he or she was committed or discharged, and the reasons provide for meaningful review, they have served their purpose. At the end of the day, the obligation is to render sufficient reasons that demonstrate that the judge has met her or his mandatory statutory duty under s. 548(1) of the Code: Deschamplain at para. 34. Standing alone, silence in a preliminary inquiry judge’s reasons does not necessarily justify intervention: Deschamplain at para. 24.

Standard of review on an application for certiorari

[35] Like a preliminary inquiry judge, a reviewing court’s jurisdiction is also narrowly circumscribed. An order of certiorari goes only where there has been a denial of natural justice or where the preliminary inquiry judge has exceeded his or her jurisdiction by failing to comply with the strictures of s. 548(1) of the Criminal Code: Deschamplain at paras. 19, 21, 23. An excess of jurisdiction will occur where, for instance, an accused is committed for trial in the absence of evidence respecting an element of the offence(s): Deschamplain at para. 23; Sazant at para. 16.

[36] The Court of Appeal recently warned reviewing courts against subjecting a single ongoing event to “a metaphysical, frame-by-frame dissection” of each item of evidence. This is particularly true in cases of circumstantial evidence. Requiring that evidence be assessed as a “whole” means that it must not be examined in isolation, “shorn of its context, then cast aside if a competing inference can be conjured”: Hall at para. 6.

First-degree murder

[37] As for first-degree murder, it is statutorily informed. Section 222 of the Criminal Code governs homicide. A person commits homicide where he or she directly or indirectly causes the death of another. Culpable homicide occurs where, among other things, the person causes death by means of an unlawful act.

[38] Culpable homicide is murder in the circumstances covered by s. 229 of the Criminal Code. Section 229(a)(i) of the Criminal Code renders a culpable homicide murder where the accused means to cause death. Given that Mr. Thompson received two gunshot wounds to the head and two to the back, it seems to me that an inference could easily be drawn that there was an intent to cause his death. As such, and for purposes of these reasons, there is no need to discuss murder under s. 229(a)(ii).

[39] Section 231 of the Code governs the classification of murder. Murder is either first or second degree murder. A murder becomes first degree murder where it falls within the statutorily defined circumstances of s. 231(2)-(6.2) of the Criminal Code. Pursuant to s. 231(7) of the Code, a murder that is not first-degree murder is second-degree murder.

[40] Pursuant to s. 231(2) of the Code, a planned and deliberate murder is first degree murder. The words “planned” and “deliberate” have a specific meaning under the law. To this day, Gale J.’s (as he then was) charge in R. v. Widdifield, Ontario Supreme Court, Gale J., 29th September 1961, (unreported), as excerpted in (1963-1964) 6 Crim. L.Q. 152 at p. 153, is resorted to as an excellent explanation of these concepts:

I think that in the Code "planned" is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.

As far as the word "deliberate" is concerned, I think that the code means that it should also carry its natural meaning of "considered," "not impulsive," "slow and deciding," "cautious," implying that the accused must take time to weigh the advantages and disadvantage of his intended action.

[41] Justice Gale’s charge in Widdifield was described by Cory J. in Nygaard, 1989 6 (SCC), [1989] 2 S.C.R. 1074, [1989] S.C.J. No. 110 at para. 43 as a “classic instruction to a jury as to the meaning of ‘planned and deliberate’”. See also: R. v. Reynolds (1978), 1978 1269 (ON CA), 22 O.R. (2d) 353 (C.A.) at para. 21; R. v. Stiers, 2010 ONCA 382 at para. 66.

Parties to offences: joint principals and aiders

[42] Section 21(1) of the Criminal Code makes everyone a party to an offence provided they (a) commit it, (b) do or omit to do something for the purpose of aiding the principal in committing it, or (c) abet a person in committing it. Section 21(2) makes two or more people liable where they form an intention in common to carry out an unlawful purpose and, in carrying out their common purpose, one or more of the group commits another offence. When it comes to murder, each person who joined in the agreement to commit the unlawful purpose, and knew that a murder would be the probable (meaning likely) consequence of carrying out the common purpose, is a party to the murder.

[43] While the route to liability is different for principals and parties to offences, in the end result, it is a “matter of indifference at law” whether a person is a principal, co-principal, aider, or abettor: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198 [Pickton] at para. 51; R. v. Maciel, 2007 ONCA 196 at para. 85, leave to S.C.C refused [2007] S.C.C.A. No. 258, [2007] 3 S.C.R. xi. This is why juries are instructed, as a matter of law, that they need not be unanimous as to the nature of the accused’s participation in the offence, as long as they are satisfied that the accused committed the offence as a principal, co-principal, aider and/or abettor: R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652 at p. 659; Pickton at para. 58. For purposes of the preliminary inquiry, provided there is some evidence that the accused participated in the offence in one of these ways, it is sufficient for committal.

[44] At its core, aiding within the meaning of s. 21(1)(b) means helping the principal offender(s) to commit the offence: R. v. Briscoe, 2010 SCC 13 at para. 14. There are three elements that must be proven in respect to an aider (through action) to an offence:

(i) that the offence was committed;

(ii) the accused aided in the commission of the offence (often referred to as the “conduct requirement”); and

(iii) that the accused did so with the requisite mens rea (often referred to as the mens rea element).

[45] As for the conduct requirement, the aider must say or do something to aid in the commission of the offence. He or she does not have to be present at the commission of the offence and there need not be an agreement between the principal and aider. All that is required is that the aider do something that assists the principal in committing the offence: R. v. Almarales, 2008 ONCA 692 at paras. 66-67. In short, there must be some connection between the act of aiding and the commission of the offence.

[46] As for the mens rea requirement, the accused must do the thing for the purpose of aiding the principal in committing the offence. This means that the aider must know the principal intended to commit the offence and the aider must have intended to assist the principal in some way. In the end, to be found guilty of aiding in an offence, the aider’s purpose must be to aid in that offence: R. v. Helsdon, 2007 ONCA 54, 216 C.C.C. (3d) 1 (Ont. C.A.) at para. 37; Briscoe at para. 16.

[47] Wilful blindness can substitute for knowledge when considering whether someone has aided in the commission of an offence. It can also substitute for knowledge when it comes to s. 21(2) common purpose liability. In determining whether the accused knew that the principal intended to commit the offence (s. 21(1)(b)), and in determining whether the accused knew that one of the participants in the original agreement would likely murder someone in carrying out the original agreement, wilful blindness can stand in the place of knowledge.

[48] Wilful blindness exists where the accused strongly suspects that the principal intends to commit a specific offence and deliberately chooses not to inquire. To be wilfully blind, the person must know there is a need to inquire and makes a deliberate decision to remain ignorant because he or she does not wish to know the truth: Briscoe at paras. 21-25; Sansregret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570, [1985] S.C.J. No. 23 at para. 22.

The Law Applied

[49] Mr. Justice Keaney heard 37 witnesses over 22 days of evidence. In the end, he issued reasons for why he concluded that Mr. Greensword, Mr. Williams, and Mr. Browne should be committed to trial on first degree murder.

[50] As Crown counsel acknowledges, the reasons are somewhat brief, but the adequacy of reasons and grounds upon which to commit for trial are not to be measured by the pound. As above, the sole question is whether the reasons reveal why the accused were committed for trial and whether they provide an adequate basis for review. I find that the reasons meet this test and there has been no excess of jurisdiction.

[51] Justice Keaney correctly acknowledged the test for committal. He also noted that he was duty bound to commit where there is evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. He further correctly noted that he was not to assess the “quality, reliability or credibility of the evidence” at this stage of the proceedings, and that the Crown’s case is to be taken at its highest when considering committal.

[52] Justice Keaney also referenced the fact that, if circumstantial evidence makes certain inferences available that support the Crown’s case, it “must be left to the [t]rial [c]ourt to consider them”. He then commented on the “limited weighing” function of the preliminary inquiry judge. Relying upon Arcuri for support, he correctly noted that the reasonableness of the inferences to be drawn from circumstantial evidence requires a limited weighing of the whole of the evidence.

[53] As for first degree murder, Justice Keaney made reference to the judicially defined meaning of “planned” and “deliberate”. He also cited Widdifield, for the definition of deliberate.

[54] He then made reference to numerous facts that he said support the “sufficiency test” for committal on first degree murder, including:

• Thompson was a drug dealer, excited at the prospect of doing a large sale to Amal Greensword (Scarface).
• Telephone and text conversations between Thompson and Greensword directed Thompson, at Greensword's instigation, finally, to the location of his murder, after other locations had been identified then changed.
• Thompson and Warner left Tooks parked at the side of 7280 Darcel, walked along the rear, and entered the lobby through the rear entrance.
• Greensword lived in the next door building.
• Thompson and Warner were seen on video. A car passed by, going back and forth, giving the appearance of stalking them.
• Video of the lobby, preceding the arrival of Thompson and Warner, shows Greensword and Williams with a third person.
• Good quality video provides recognition evidence of Williams' presence.
• A pictorial likeness is identified by Warner as Steven Browne, said to be the shooter.
• Thompson and Warner exited the lobby, walking towards Tooks’ vehicle. Warner saw, parked, the white vehicle she had previously seen passing by.
• Warner saw three individuals exit the vehicle, two of the men approaching her and Thompson.
• Shots were fired immediately upon the men approaching Thompson and Warner, with no words spoken.
• There is no evidence of an attempt at robbery. Jewelry and cash were left on Thompson's body.
• There is no evidence of any intention or actions towards Margaret Warner.
• Steven Browne's DNA was found under Thompson's finger nail.
• Motor vehicle rental agreements link Greensword and Browne to motor vehicles similar to that observed at the scene.
• Cell phone records place all accused in the area. Cell phone records suggest Greensword, Browne, and Williams to have been in repeated contact throughout the day, with Browne's cell phone records also indicating contact with Ogunbitan just before the event, and with Williams just after. [Reasons for Committal, R. v. Browne, [2014] O.J. No. 3760 (Ct. Jus.), at para. 27.]

[55] While the preliminary inquiry judge did not review all of the evidence led over 22 days, he was not required to do so. Rather, he was required to determine whether there was sufficient evidence upon which a committal to trial could flow. He correctly came to the determination that there was such evidence.

[56] Interestingly, Keaney J. did not even rely upon Ms. Warner’s direct identification evidence that the men she saw on the video (two of whom were conceded to be Mr. Greensword and Mr. Williams) were the men she originally saw running to the white vehicle, the same vehicle from which three men emerged just prior to the shooting. Whether or not the applicants were the two who approached Mr. Thompson just prior to the shots ringing out is irrelevant, particularly for purposes of the preliminary inquiry. At a minimum, what is relevant is that Ms. Warner provided direct evidence that the men on the video were associated with the white vehicle that was seen driving in what could be inferred as a stalking manner, just prior to Mr. Thompson being shot to death.

[57] The applicants’ submissions about the frailties of Warner’s identification evidence amount to a request that I find Justice Keaney exceeded his jurisdiction because he did not consider all of the things that may detract from or shake the reliability of Ms. Warner’s testimony about the men associated to the white car. While Ms. Warner testified that one of the men had a “scruffy growth” or “patchy hair” on his face, and that one of the other men was “ugly and black and big”, for purposes of a preliminary inquiry, it is irrelevant that these descriptions do not necessarily match the accused. What matters is that there is direct evidence linking the applicants, in the minutes before the homicide, to the white vehicle from which the men who killed Thompson emerged. Not only was it not up to Justice Keaney to resolve the identification issues raised by the applicants, but he would have exceeded his jurisdiction had he gone down the path suggested.

[58] Aside from the direct evidence available in this case, there is also a significant body of circumstantial evidence from which it can be inferred that the applicants were involved in a first degree murder as principals, co-principals and/or aiders. I agree with Justice Keaney that there was more than sufficient evidence in this regard. I also agree with him that the accused have “defences at trial available to them, and inferences available other than those that favour the Crown”. He correctly noted that these are issues of fact that must be left with the trier of fact.

[59] No doubt, if the evidence unfolds in a similar manner to what was led at the preliminary inquiry, the forceful submissions made by counsel before me will form part of their closings at trial. That is the correct forum to make these submissions. These factors do not go to the jurisdiction of the preliminary inquiry judge. To consider them would be to engage in the precise approach that the Court of Appeal for Ontario has recently eschewed: “a metaphysical, frame-by-frame dissection” of the evidence.

[60] In the end, among other things, there was more than sufficient evidence to commit the applicants for trial on first degree murder, including:

i) direct evidence from Ms. Warner (however questionable it may or may not be), that the men on the video (two of whom are conceded to be the applicants) ran to the white car that stalked Mr. Thompson and she just prior to Thompson being shot at the same white car;

ii) evidence that Mr. Greensword arranged for Mr. Thompson to go to the location where he was ambushed after he emerged from the lobby;

iii) evidence of cellular phone contact between Mr. Greensword, Mr. Williams, and Mr. Browne during the day of the homicide;

iv) evidence of Mr. Thompson’s DNA under Mr. Browne’s fingernail; and

v) evidence that Mr. Greensword was connected to a white car on November 1, 2012.

[61] Emerging from this preliminary inquiry, there is clear evidence that whoever pulled the trigger four times, intended that Mr. Thompson die. Two gunshot wounds to the head and two to the back lead to a strong inference of intent under s. 229(a)(i).

[62] There is also evidence from which a reasonable jury, properly instructed, could infer that Mr. Thompson’s murder was planned and deliberate. He was directed to the location where he was killed. A white car is seen on video driving back and forth in a stalking fashion. Mr. Thompson was left with two cellular phones, over a thousand dollars in cash, and jewellery on his person, leading to the inference that whoever killed him was not trying to simply rob him. Moreover, Ms. Warner was not obstructed in her escape. Using the vernacular, there is evidence from which a trier of fact could infer that this was a “hit”. Within the framework set out in Widdifield, there is plenty of evidence that this was a planned and deliberate murder.

[63] While there is no direct evidence as to who pulled the trigger, this does not matter. The Crown need not have that evidence for committal (or, indeed, at trial). Pursuant to Thatcher, the accused are equally liable, regardless of whether they are principals or aiders. The evidence points in the direction that all those at the scene of the murder would either be principals, co-principals or aiders to the murder of Mr. Thompson. At a minimum, the direct and circumstantial evidence led at the preliminary inquiry, and relied upon by Justice Keaney, provides some evidence that both Mr. Greensword and Mr. Williams were involved in the planned and deliberate first degree murder of Mr. Thompson.

[64] There is evidence that Mr. Greensword got the victim to the scene. There is evidence that Mr. Greensword and Mr. Williams got into a white vehicle that stalked the victim at the scene. There is evidence that minutes later, the victim was killed by and in the presence of men who emerged from that same white vehicle. There is evidence that Mr. Browne, whose DNA was found under the victim’s fingernails, was not only an acquaintance of the applicants, but in direct communication with them leading up to the homicide. There is evidence that Mr. Greensword was connected to a white rental car on the day of the offence.

Conclusion

[65] Based on the totality of the evidence, it can be inferred that the applicants were involved in the planned and deliberate murder of Mr. Thompson and, indeed, they were present at the scene of his murder. They were properly committed to trial on first degree murder.

[66] The applications for certiorari are dismissed.

[67] Thank you to counsel for their helpful written and oral submissions.

FAIRBURN J

Released: June 19, 2015