DATE : 20160614 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Elizabeth Jackson and Phil Tsui, for the Crown
- and -
DELLAN McMORRIS Brian Ross and Jillian Carrington, for the Defendant
Ruling No. 6 The Motion for a Directed Verdict Trafford J.
THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.
A. Introduction
This is a motion for a directed verdict.
The live issue on the motion is the identity of the defendant as a perpetrator.
The motion is dismissed.
B. The Legal Framework of the Motion
The duty of a judge sitting with a jury on a motion for a directed verdict is the same as the duty of a judge determining the sufficiency of the evidence at the end of a preliminary hearing, presently under s. 548 of the Criminal Code, R.S.C. 1985, c. C-46. See U.S.A. v. Sheppard (1976), 30 C.C.C. (2d) 424 (S.C.C.), R. v. Monteleone, [1987] 2 S.C.R. 154 at 160 and R. v. Charemski, [1998] 1 S.C.R. 679 at paras. 2-4.
The preliminary hearing judge is to determine whether there is any evidence upon which a properly instructed jury acting reasonably could be satisfied beyond a reasonable doubt that the defendant committed the alleged offence, first degree murder in this case. Where, as here, the evidence tendered by the Crown on the issue of identity is circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence, including the defence evidence, to determine the sufficiency of the evidence. This limited weighing does not involved drawing inferences from the evidence, assessing the credibility of the witnesses or considering the inherent reliability of the evidence. The task of the judge is to decide whether, if the evidence of the Crown is believed, it would be reasonable for a properly instructed jury to infer guilt beyond a reasonable doubt. This limited weighing of the evidence includes an assessment of the reasonableness of the inferences that may be drawn from the evidence. The judge is not to, in effect, determine which of the reasonable inferences open to such a jury is likely to be drawn by the jury, or which of the reasonable inferences is preferred by the judge. See R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at paras. 20-23, especially paras. 23, 29 and 32. The jurisdiction of the jury on issues of fact is an exclusive one, and is to be respected by the trial judge. The jury will determine whether or not an inference is a reasonable one, or rather mere speculation, and, further, whether or not to draw any such reasonable inference, in the context of the evidence as a whole. See R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at paras. 52 and Charemski at para. 4. Speculation is not permissible. See R. v. Munoz, [2006] O.J. No. 446 (S.C.J.) at paras. 23-31. Whether an inference may be easily drawn or may be drawn with some difficulty is of no legal significance. See R. v. Kamermans, 2016 ONCA 117, [2016] O.J. No. 685 at para. 20. The drawing of inferences is something that reasonable people may differ on, given their experience in life, but speculation is impermissible.
C. The Evidence at Trial
C.1 Introduction
Let me now review the evidence at trial, briefly.
C.2 The Circumstances of the Crime
Delano Coombs was shot and killed as he drove his car westbound in a laneway at 4020 Dundas Street West around 2:55 p.m. Joel Edwards was in the front passenger seat.
Suddenly, many shots were fired at the car and the deceased, but not Edwards. The FIS found nine 9 mm shell cartridges in the laneway and one 10 mm shell cartridge in a stairwell adjacent to the laneway. There were at least two operating firearms in this crime. Four bullets were found in the body during the autopsy. One bullet was found in the body bag. Three of the bullets were fired from a position outside of the car near the front passenger side of the car as it proceeded westbound at a slow speed, and impacted the windshield. Two of them perforated the windshield, passed through the passenger compartment and exited through the open driver's door. The deceased had opened it after the shooting began to facilitate an escape. He left the car as it moved, but stumbled and fell to the pavement where he died a few minutes later.
Three persons were near the bottom of the stairwell holding handguns, pointing them towards the car and pulling the triggers. Two of the handguns fired shots, several of them, and one of them made a repeated clicking sound. Two of the men were at the bottom of the stairs, one to the left and one to the right. The third man was on the other side of the car. He was wearing a black hoodie. He approached the deceased after he fell to the ground, and shot him several times. After the shooting stopped, the man wearing the black hoodie ran westward out of the complex, towards the train tracks that ran east and west just north of the complex, crossed the tracks, removed the black hoodie and left it in a yard on the north side of the tracks. It had the defendant's DNA on the cuff of the right sleeve, and a logo of STG Entertainment on it, in white. The other two shooters ran from the scene in another direction.
C.3 The Admissions by Bent
One of the shooters was Jerome Bent who entered a plea of guilty to a charge of first degree murder arising from the death of Coombs. Bent admitted that he used a Glock 17 handgun and, further, that he planned and deliberated about this intentional shooting of Coombs. A Glock 17 handgun may have fired the 9 mm cartridge cases found in the laneway by the FIS. Bent's plan and deliberation was completed before the intentional firing of the three handguns by the three perpetrators. The other two perpetrators, one may reasonably infer, knew of Bent's plan and deliberated about the killing of Coombs with Bent, and participated in the shooting by firing their own handguns or otherwise purposively assisted or encouraged him throughout the shooting of Coombs.
C.4 The Identity of the Other Perpetrators
Sometime, likely around 2:30 p.m., Bent met the defendant and another man on Old Dundas Street. It runs east-west about a block south of Dundas Street West. The scene of the crime is on the north side of Dundas Street West. Old Dundas Street is proximate to Dundas Street West. The meeting of these three men likely occurred as a result of a series of telephone conversations between the defendant and Bent from about 1:30 p.m. to 2:25 p.m. There were 7 such conversations over that interval, which is many more than the usual number of contacts between their phones earlier in May 2012. There were no such conversations after the murder, with the exception of a very brief one on May 11, 2012, through the end of May 2012. The meeting of Bent, McMorris and the other man occurred with the innocent help of Amanda Rumbolt. She was Bent's girlfriend. On that day, she was driving her car with Bent aimlessly, more or less just to pass time and enjoy the day together, when he received a call. After a brief conversation with the person who called, Bent told Rumbolt he wanted to meet some friends. He directed her to Old Dundas Street. The aimless drive became a purposive drive, for Bent. One of the friends he wanted to meet was the defendant. Rumbolt parked her car. Another car arrived and parked nearby. The defendant and another man exited through the passenger doors of the other car. The driver stayed in the car, as if he knew he was not to be a part of the conversation that was about to occur with Bent. He was likely a person who was trusted by the defendant and the other man. Bent said to Rumbolt "…wait… do not leave… I will be back…". He left the car, and met the defendant and the other man. They had a conversation. Rumbolt did not hear the conversation. She was excluded from it just as the driver of the other car was. The driver of the other car likely did not hear the conversation. It was a private conversation between Bent, who was about to commit a planned and deliberate murder of Coombs, and two other men, including the defendant. At that stage Bent would only meet people he trusted. All of them participated in the conversation, having agreed to meet Bent at that location. It is a reasonable inference that the conversation related to Bent's intention to kill Coombs. Why else would Bent meet them at that location, near the crime scene, just before the crime was committed? Why else would the defendant and the other man come to Bent, and talk to him privately? Bent either had the Glock 17 handgun on his person then, or it was provided to him by someone else after the three of them drove towards 4020 Dundas Street West. There is no evidence that Bent met anyone else than the three people in the car before the murder of Coombs. It is a reasonable inference that, if Bent did not bring the Glock 17 handgun with him, it was given to him by someone in the other car.
The car left Old Dundas Street and drove towards 4020 Dundas Street West, with Bent, McMorris and the other man as passengers. Old Dundas Street was close to Dundas Street West. Rumbolt was set up by Bent to provide him with an escape after the murder.
There were no other conversations between Bent and McMorris on their cell phones between 2:25 p.m. through the time of the alleged murder around 2:55 p.m. It is a reasonable inference, in the context of the evidence as a whole, that they were together at the crime scene after they left Old Dundas Street until they took flight after the three of them fired their handguns at Coombs. Two of them actually discharged shell casings, 9 mm, in the case of Bent using the Glock 17, and 10 mm in the case of one of the other shooters. The use of the defective handgun by the other perpetrator may or may not negate the intention of that perpetrator to aid or abet the other perpetrators, including Bent, in a first degree murder of Coombs.
Lastly, it is a reasonable inference that the defendant was the perpetrator who discarded the black hoodie across the tracks. His DNA was on it. There was gunshot residue on it because the person who wore it shot Coombs. Rumbolt never saw Bent with such a hoodie after she met him in February 2012. He spent a lot of time at her apartment as of March 2012. She has a child by him. She never had such a hoodie in her apartment. She and Bent went to a STG Entertainment photo shoot where they wore t-shirts or other such garments with the logo on them, but did not take any home. Bent and McMorris associated within the business of STG Entertainment. Thus, it is a reasonable inference that McMorris either provided that black hoodie to Bent after they left Old Dundas Street or wore it himself, given McMorris' DNA on it, when considered in the context of the evidence as a whole.
C.5 Conclusion
That completes my brief review of the evidence at trial, including the direct evidence relating to the issue of identity and some of the reasonable inferences that may be drawn from it, in the context of the evidence as a whole.
D. Conclusion
For these reasons, the motion for a directed verdict is dismissed. A properly instructed jury acting reasonably could be satisfied beyond a reasonable doubt that the defendant committed the offence of first degree murder in connection with the death of Delano Coombs on May 10, 2012, as a principal offender or as an aider or abettor of a principal offender, contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46.
June 14, 2016 Trafford J.
THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.