CITATION: R. v. Abdo, 2016 ONSC 7957

COURT FILE NO.: CR-4-423/15

DATE: 20161218

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

ABEL ABDO

JOHNATHAN MCLENNAN and

DOMINIQUE JERMAINE WILKS

Allison MacPherson and Oslyn Braithwaite,

for the Crown

Hussein Aly, for Abel Abdo

Yoni Rahamim, for Johnathan McLennan

Ayderus Alawi, for Dominique Wilks

HEARD: December 5, 2016

K.L. Campbell J.:

Ruling

Directed Verdict Application

A. Overview

[1] The three accused, Abel Abdo, Johnathan McLennan and Dominique Jermaine Wilks, are all jointly charged with six offences, namely: (1) conspiracy to commit murder; (2) attempted murder; (3) discharging a firearm with intent to wound; (4) discharging a firearm with intent to endanger life; (5) unlawful possession of a loaded prohibited or restricted firearm; and (6) unlawful possession of a firearm (a handgun). All of these offences are alleged to have been committed by the accused in Toronto on or about July 16, 2014. With respect to the first four offences, the alleged victim of the offences is Mr. Asher Jalal Din. Essentially, the Crown alleges that the three accused friends acted in concert in ambushing and trying to murder Mr. Din, believing that he had stolen $1,400 from Mr. Wilks and Mr. McLennan, after they had engaged in a “cheque fraud” together. The accused are being tried by a jury.

[2] At the close of the Crown’s case, defence counsel for the three accused moved for a directed verdict of acquittal with respect to the first count of the indictment. More specifically, defence counsel argued that there was no evidence that the accused participated in any conspiracy to murder the complainant, Mr. Din. Defence counsel did not challenge the sufficiency of the evidence with respect to any of the other five counts of the indictment. In response, the Crown contended that there was “ample evidence” upon which a reasonable jury, properly instructed, could infer that there was an agreement amongst the three accused to murder Mr. Din.

[3] After hearing the submissions of counsel, I advised the parties that the directed verdict application by the defence must be dismissed. I indicated briefly that, in my view, there was some evidence in this case, upon which a reasonable jury, properly instructed, could find that the three accused were guilty of conspiring together to murder Mr. Din. I also advised the parties that I would subsequently provide reasons in support of this conclusion. These are those reasons.

B. Directed Verdict Motions – The Applicable Legal Standard

[4] The law is well-settled that on a directed verdict motion brought by an accused at the close of the Crown’s case, the limited responsibility of the trial judge is to determine whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty upon the charges against the accused. This legal standard applies on all applications for a directed verdict, regardless of whether the case against the accused is based upon direct evidence, circumstantial evidence, or a combination of both kinds of evidence. Moreover, on any such motion the trial Judge must refrain from assessing the credibility of witnesses, weighing the testimony, considering the quality or reliability of the evidence, drawing factual inferences from the evidence, or making any determinations of fact. Those are all functions that are strictly reserved for the trier of fact – in this case, the jury. See United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at pp. 1079-1080; R. v. Mezzo, 1986 16 (SCC), [1986] 1 S.C.R. 802, at pp. 836-845; R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, at p. 160-161; R. v. Morabito, 1949 1 (SCC), [1949] S.C.R. 172, at p. 174; R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679, at paras. 2-4.

[5] In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, the Supreme Court of Canada confirmed that this same legal standard applies regardless of whether the evidence is direct or circumstantial, but noted that the task of the judge is somewhat more complicated in cases of circumstantial evidence as, in such cases, the judge must determine what potential inferences are reasonably open to the jury from the circumstantial evidence. More particularly, McLachlin C.J.C., delivering the judgment of the court, stated, at para. 23, that answering this question, about available inferences, “inevitably requires the judge to engage in a limited weighing of the evidence,” in the sense of “assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.” In short, the judge asks only “whether the evidence, if believed, could reasonably support an inference of guilt.” Further, and importantly, at paras. 25-32, the Supreme Court reaffirmed the “continuing validity” of the “traditional common law rule” articulated in United States of America v. Shephard. McLachlin C.J.C. stated, at para. 30:

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[6] In addition, as the Supreme Court of Canada confirmed in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 18 and 25(2), this limited weighing process does not involve choosing amongst competing reasonable inferences, which is the sole jurisdiction of the trier of fact, but rather involves determining only the field of potential factual inferences that could reasonably be drawn in the circumstances. See also R. v. Dubois, [1986] S.C.R. 366, at p. 380; R. v. Campbell (1999), 1999 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont.C.A.), at paras. 6-9; R. v. Montour, [2002] O.J. No. 141 (C.A.), at paras. 3-4; R. v. Bogiatzis, [2002] O.J. No. 736 (S.C.J.), at para. 25.

[7] Further, the inferences to be drawn from circumstantial evidence need not be “compelling” or even “easily drawn” in order to be reasonable. If an inference is a reasonable and logical one, the question of whether or not it should ultimately be drawn must be left for the trier of fact. See R. v. G.W. (1996), 1996 427 (ON CA), 93 O.A.C. 1 (C.A.), at para. 62; R. v. Katwaru (2001), 2001 24112 (ON CA), 153 C.C.C. (3d) 433 (Ont.C.A.), at paras. 37-41; R. v. Munoz (2006), 2006 3269 (ON SC), 86 O.R. (3d) 134 (S.C.J.), at paras. 18-22.

[8] Accordingly, at the directed verdict stage of a criminal trial, the trial judge must proceed on the basis that all available reasonable inferences might be drawn in favour of the Crown by the trier of fact. As Doherty J.A. recently stated, in delivering the judgment of the Court of Appeal for Ontario in R. v. Jackson, 2016 ONCA 736, at para. 7:

In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied upon by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769 (Ont.S.C.), at para. 31; and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.

If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.

[9] In other words, the rule in Hodge’s Case (1838) 1838 1 (FOREP), 168 E.R. 1136, has no application at the directed verdict stage of a criminal trial. Of course, a trial judge will often be required to instruct a jury that, before they find an accused guilty of an offence on the basis of circumstantial evidence, they must be satisfied beyond a reasonable doubt that his or her guilt is the only reasonable conclusion that can be drawn from the whole of the evidence. That standard does not apply, however, at the directed verdict stage of a criminal trial. At the directed verdict stage, if the evidence is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, the case must be left with the trier of fact to determine what inference should be drawn in all of the circumstances of the case. See R. v. Russell, 2001 SCC 53, at paras. 48; R. v. Villaroman, 2016 SCC 33, at paras. 17-22, 32-34; R. v. Jackson, at paras 9-15; R. v. Collins and Pelfrey (1993), 1993 8632 (ON CA), 12 O.R. (3d) 161 (C.A.), at paras. 22-30.

[10] The trial judge must remember, however, that while it is for the jury to choose amongst reasonable inferences available from the evidence, the jury cannot be invited to draw “speculative or unreasonable inferences.” See R. v. Figueroa, 2008 ONCA 106, at para. 35.

[11] In short, as Binnie J. stated, in delivering the judgment of the majority of the Supreme Court of Canada in R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 48, a directed verdict of acquittal is not available if there is “any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction.” See also R. v. E.B., [2004] O.J. No. 3528 (C.A.), at paras. 10-17.

C. Proof of an Alleged Conspiracy

[12] Generally speaking, the definitional essence of the inchoate crime of conspiracy is the agreement of two or more persons to commit an unlawful act. The actus reus of the offence is the formation of an agreement between two or more persons to commit an unlawful act. The mens rea of the offence is the genuine intention to agree and to commit the unlawful act. In short, there must be a true meeting of the minds amongst the members of the conspiracy to effect their common unlawful purpose. However, as the crime of conspiracy is complete upon the intentional agreement of the parties, there need be no subsequent overt acts committed in furtherance of that agreement. Any such subsequent overt acts are simply pieces of circumstantial evidence going towards proof of the essential ingredient of the offence, namely, the agreement itself. See R. v. Paradis, [1934] S.C.C. 165, at p. 168; R. v. O’Brien, 1954 42 (SCC), [1954] S.C.R. 666, at pp. 668-669; R. v. Papalia, 1979 38 (SCC), [1979] 2 S.C.R. 256, at p. 276; R. v. Douglas, 1991 81 (SCC), [1991] 1 S.C.R. 301, at p. 316; United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, at paras. 86-88; R. v. Alexander (2005), 2005 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont.C.A.), at paras. 46-47, leave denied, [2005] S.C.C.A. No. 526; R. v. J.F., 2013 SCC 12, at paras. 32, 39, 44, 51-53; R. v. Correia (2016), 2016 BCCA 330, 339 C.C.C. (3d) 321 (B.C.C.A.), at paras. 78-81.

[13] As the Supreme Court of Canada stated in R. v. Déry, 2006 SCC 53, at paras. 47-48, the offence of conspiracy is, essentially, a “crime of intention” and that “conspiracies are criminalized when hatched,” and that they “can only be hatched by agreement” which “exposes the otherwise hidden criminal intentions of the parties to it,” and “demonstrates their commitment to a prohibited act.”

[14] The specific crime of “conspiracy to commit murder” is no different. As Moldaver J. stated, in delivering the judgment of the Supreme Court of Canada in R. v. J.F., at para. 21:

Like all conspiracies, conspiracy to commit murder is a form of inchoate liability. The crime is complete when two or more persons agree to kill a third party. No one need be killed; nor is it necessary that any steps be taken to bring about the murder.

[15] With respect to proof of the offence of conspiracy, Moldaver J. provided this further explanation, in R. v. F.(J.), at para. 52:

…where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object sought to be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred. To be precise, it would be evidence of an agreement, whether tacit or express, that the unlawful object should be achieved. Ultimately, that issue is one for the trier of fact, who must decide whether any inference other than agreement can reasonably be drawn on the evidence.

D. Analysis of the Evidence in the Present Case

1. Introduction

[16] As I have indicated, in all of the circumstances of the present case, and after having carefully considered the written and oral submissions of the parties on this application, I am satisfied that there is some admissible evidence upon which a properly instructed jury, acting reasonably, could conclude that the three accused are guilty of the crime of conspiracy to commit murder, as charged in the first count of the indictment.

2. The Motive for the Murder Plot

[17] The jurisprudence defines the term “motive” as meaning an “ulterior intention” – the reason why someone acts in a particular manner. The motive for an alleged offence is always relevant. Accordingly, evidence of motive is generally admissible. At the same time, however, motive forms no part of the crime and is legally irrelevant to criminal responsibility. As a matter of law, it is simply not an essential element of the Crown’s case. Motive is always a question of fact and a matter of degree, and each case will turn on its own unique set of circumstances. See R. v. Lewis, 1979 19 (SCC), [1979] 2 S.C.R. 821, at pp. 834-838; R. v. Malone (1984), 1984 3480 (ON CA), 11 C.C.C. (3d) 34 (Ont.C.A.), at p. 43, leave denied, [1984] S.C.C.A. No. 272; R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 59-60; R. v. Candir (2009), 2009 ONCA 915, 250 C.C.C. (3d) 139 (Ont.C.A.), at para. 51, leave denied, [2012] S.C.C.A. No. 8; R. v. Luciano, 2011 ONCA 89, at paras. 113-114; R. v. Hill, 2015 ONCA 616, at para. 59; R. v. Salah, 2015 ONCA 23, at paras. 64-66.

[18] In my view there is some evidence in this case that supports the conclusion that the accused may have had a motive to kill Mr. Din. More specifically, the evidence suggests the following:

• Mr. Din told Mr. McLennan, who he knew as “Famz,” about a “bank scam” that they could do together that would make them some extra money. More particularly, Mr. Din told Mr. McLennan that if they could find someone who had an account at the Royal Bank of Canada (RBC), and had a bank card, they might be able to make approximately $1,500 by depositing a “fake cheque” in an Automated Teller Machine, and then withdrawing the money the next day before the bank discovered the cheque was fraudulent. Mr. McLennan agreed to participate in the fraud and knew someone that had the necessary RBC account and bank card.
• At approximately 1:04 p.m. on July 14, 2014, Mr. Din, Mr. McLennan and Mr. Wilks worked together to deposit a fraudulent cheque, in the amount of $1,460, into the RBC bank account belonging to Mr. Wilks, using Mr. Wilks’ bank card and his personal identification number for the account.
• On the morning of July 15, 2014, at approximately 8:16 a.m., Mr. Din managed to set up this same RBC bank account for telephone and online banking. Later that same day, at approximately 11:19 a.m., Mr. Din transferred $1,400 from Mr. Wilks’ bank account to his own pre-paid Bank of Montreal (BMO) MasterCard.
• As a result of this “suspicious” transaction, the bank began an internal investigation and, at 5:08 p.m. on July 15, 2014, gave a “hot customer” status to this account, which would have prevented any further transactions in the account, although still permitting balance inquiries.
• RBC bank records showed that someone tried to use Mr. Wilks’ bank card, a couple of times, at around 7:49 p.m. on July 15, 2014, at an Automated Teller Machine located at 1732 Jane Street. In addition to Mr. Din, both Mr. Wilks and Mr. McLennan potentially had access to this account by having the bank card in their possession and knowing the personal identification number necessary to access the account.
• The subsequent RBC reversal of Mr. Din’s $1,400 payment onto his BMO MasterCard did not take place until at least 1:42 p.m. on July 16, 2014, when the RBC received a fax transmission from TD Canada Trust indicating that the originally deposited $1,460 cheque would not be honoured.

[19] This body of evidence supports the reasonable inference that Mr. Wilks and/or Mr. McLennan may have believed that the complainant had taken for himself almost all of the funds represented by the $1,460 fraudulent cheque, instead of sharing those proceeds with Mr. Wilks and Mr. McLennan, and leaving Mr. Wilks to try to explain the fraudulent dealings in his own account. Accordingly, the jury could reasonably infer from this evidence that one or two of the accused had a motive to murder Mr. Din, seeking revenge on Mr. Din for stealing all of the fraudulently obtained funds from the account and leaving Mr. Wilks “holding the bag.” As the evidence also supports the conclusion that the three accused were friends and associates, and were all together on July 16, 2014 in the time period immediately before the shooting, the jury could also reasonably infer that they might have wanted to help each other in furtherance of this plot for revenge against Mr. Din.

3. The Complainant Was Lured to the Paxtonia Blvd. Parking Lot

[20] According to the trial testimony of Mr. Din, he and Mr. McLennan agreed to try the same “bank scam” again on the afternoon of July 16, 2014, but this time they would be using the bank account and associated bank card belonging to Mr. McLennan’s mother. The cell phone records confirmed that there were many communications between Mr. McLennan and Mr. Din in the morning and early afternoon of July 16, 2014, before the three accused left Mr. McLennan’s apartment.

[21] Accordingly, when Mr. McLennan drove Mr. Din and his friend, Mr. Palmer, to the parking lot behind the buildings at 27-31 Paxtonia Blvd., he thought that this was where they would be meeting Mr. McLennan’s mother. While he had provided earlier inconsistent evidence on this point, this was his trial testimony and could reasonably be accepted by the jury. Indeed, according to Mr. Din’s evidence, Mr. McLennan just earlier told him that his mother would be at the “back of the building.”

[22] Based upon this evidence, the jury could reasonably conclude that, once it was discovered that Mr. Din had taken $1,400 from Mr. Wilks’ RBC account, Mr. McLennan made these arrangements with Mr. Din, to commit another bank fraud on the afternoon of July 16, 2014, this time ostensibly with his mother, as no more than a ruse to lure Mr. Din to the rear of 27-31 Paxtonia Blvd., so that he could be ambushed there by the three accused and killed.

4. The Accused Were Acting in Concert During the Time Leading Up to the Shooting

[23] From the video surveillance evidence the jury could reasonably conclude that, in the hours leading up to the shooting of Mr. Din, the three accused were together and working in concert in furtherance of an unfolding plan.

[24] More specifically, the video surveillance evidence obtained from the building located at 1286 Wilson Avenue, where Mr. McLennan lived, reveals that the three accused left the 1286 Wilson Avenue building together, at approximately 1:20 p.m. on July 16, 2014, crossed the rear parking lot together, and then all got into Mr. McLennan’s black Mercedes-Benz. They then remained together in this vehicle in the parking lot for approximately four minutes. This vehicle then left the parking lot and went somewhere for about the next five minutes before returning to the same parking lot.

[25] The video surveillance evidence from 1286 Wilson Avenue also shows that when the black Mercedes-Benz returned to that parking lot at approximately 1:25 p.m. on July 16, 2016, Mr. Wilks and Mr. Abdo exited the Mercedes-Benz and got into the red Honda. Mr. Abdo got into the driver’s seat, and Mr. Wilks got into the front passenger seat. Both of these vehicles then left the parking lot, within a minute of each other.

[26] Just before the red Honda left the parking lot at 1286 Wilson Avenue, it stopped briefly to permit Mr. Wilks to momentarily exit the vehicle, standup outside the vehicle, and then get back into the front passenger seat. While there are other potential explanations for this conduct by Mr. Wilks during this brief stop in the parking lot as they were leaving, the jury could reasonably infer from this evidence that Mr. Wilks stood up outside the vehicle in order to more comfortably adjust the position of a firearm that he had in the waistband of his pants at that moment.

[27] According to the cell phone records, while the accused were on their way to the parking lot at 27-31 Paxtonia Blvd., between 1:34 and 1:37 p.m. on July 16, 2014, while Mr. McLennan was in his Mercedes-Benz, and Mr. Wilks was riding as a passenger in the red Honda Accord being driven by Mr. Abdo, they were in communication with each other.

[28] The jury could reasonably conclude, from the combination of the video surveillance evidence from 27 Paxtonia Blvd. and 45 Dubray Avenue, and with the appropriate corrections to their respective time-counters, that the black Mercedes-Benz and the red Honda Accord arrived at 27-31 Paxtonia Blvd. within seconds of each other at approximately 1:40 p.m. on July 16, 2014, and yet they entered the back parking lot through separate entrances, and parked (at first) in different locations in the parking lot. The jury could also reasonably conclude, from that video surveillance evidence, and the testimony of Mr. Din and Mr. Palmer, that both vehicles approached these buildings while heading in the same direction (westbound) along Paxtonia Blvd.

[29] According to the cell phone records, after the two vehicles arrived in the parking lot behind 27-31 Paxtonia Blvd., between 1:42 and 1:45 p.m. on July 16, 2014, there were a series of communications between Mr. McLennan and Mr. Wilks, and one attempted communication by Mr. McLennan to Mr. Abdo. According to Mr. Din, these communications all took place after Mr. McLennan had exited the Mercedes-Benz once it was parked, ostensibly to get his mother so that they could do the “bank scam.”

[30] From this body of evidence, the jury could reasonably conclude that the virtually simultaneous arrival of the two vehicles at 27-31 Paxtonia Blvd. was no mere coincidence, but rather was planned by the accused, and that they knew full well that they were in the parking lot together in the two cars. The jury could also reasonably conclude that they entered the parking lot through different driveways, parked in differ locations for a period of about six minutes, and engaged in cell phone communications outside of the presence of Mr. Din and his friend, Mr. Palmer, because they had not anticipated the presence of Mr. Palmer and/or wanted to engage in further discussions about how Mr. Din would be ambushed and killed.

5. The Attempted Murder – Part of the Plan – The Three Accused Acting in Concert

[31] When Mr. McLennan returned to his Mercedes-Benz after his cell phone discussions with Mr. Wilks in the Honda, Mr. McLennan immediately drove the Mercedes-Benz up along-side the red Honda. At that point, both vehicles were facing the same direction and were parked approximately one parking space apart from each other. Based upon the events that followed, and the speed with which they unfolded, the jury could reasonably conclude that, the attempted murder of Mr. Din unfolded as part of a plan that the three accused had agreed upon in advance.

[32] Based upon the evidence of Mr. Palmer, the jury could reasonably conclude that Mr. Wilks and Mr. Abdo had taken steps to prepare for the killing of Mr. Din. Mr. Palmer testified that the two men who came from the red Honda were wearing “hoodies” that were pulled up over their heads, and with the draw-strings pulled tight, and with their “hoodies” pulled down, so that their faces could not be seen, and that only their noses and mouths were visible. They both had their hands in the “kangaroo” pockets of their respective hoodies. The jury could reasonably conclude that Mr. Abdo and Mr. Wilks arranged their “hoodies” in this manner, in advance of the arrival of Mr. Din, so as to conceal their identities when Mr. Din was murdered.

[33] The evidence of Ms. Toni Brinck, a firearms expert with the Centre of Forensic Sciences, explained that when semi-automatic handguns are loaded with ammunition, the firearm must be “racked” in order to load a projectile into the firing chamber. As no witness observed Mr. Wilks, or anyone else, rack the firearm that was used to shoot Mr. Din, the jury might reasonably infer that Mr. Wilks had earlier racked the firearm while he was waiting in the Honda Accord with Mr. Abdo.

[34] Based upon the testimony of Mr. Palmer and Mr. Brian Bond, the jury could reasonably conclude that, as soon as everyone was out of their respective vehicles, the three accused men, acting in concert, quickly ambushed Mr. Din, pepper-sprayed him in the face, and then shot him.

[35] The “atmosphere” in the area of the vehicles around the men, and the body language of the accused, were such that Mr. Palmer immediately felt so “uncomfortable” that he just ran away. He heard the gun shot as he was fleeing from the scene.

[36] Mr. Bond, the superintendent of the building at 31 Paxtonia Blvd., who happened to be in the ground floor laundry room at the time, testified that, from the laundry room window, he saw the “confrontation” or “tussle” between the men. It was obvious to him that Mr. Din, who was the “man in the middle,” was trying to “get away,” but was being prevented from doing so by the others, who were physically trying to keep him “contained.” The other men were “closing-in” on him. Mr. Bond testified that he then saw that Mr. McLennan had “cocked” his right arm, with his right elbow bent, and with something in his hand that appeared to be can, but which could possibly have been a gun. He then heard Mr. Din say, “don’t, don’t, don’t, please don’t.” Mr. McLennan then extended his arm at shoulder level, pointing at Mr. Din. Within a matter of seconds, Mr. Bond heard a gun-shot, and saw the smoke from the gun. Mr. Bond then heard Mr. Din say “I’ve been shot, I’ve been shot, I need help.” The jury could reasonably infer, from this evidence, that Mr. McLennan had pepper-sprayed Mr. Din so as to disable him, so that Mr. Wilks could more easily shoot him with his loaded firearm. Subsequently, a can of “bear spray” was recovered by the police from Mr. McLennan’s apartment. No firearm was ever discovered.

[37] The evidence supports the reasonable inference that Mr. Abdo intentionally aided Mr. Wilks in his shooting of Mr. Din, by driving him to (and from) the scene of the shooting, and by physically positioning himself next to Mr. Din in order to help contain his movements. The jury could also reasonably infer that Mr. Abdo knew that Mr. Wilks was in possession of a semi-automatic handgun, as Mr. Wilks brandished the firearm as soon as he was outside the red Honda, and it seems that the firearm had already been “racked” (i.e. loaded with a bullet in the chamber), as the gun was fired, without being “racked” once Mr. Wilks was outside the red Honda.

[38] The speed with which the ambush of Mr. Din unfolded on the afternoon of July 16, 2014, also supports the reasonable inference that the three accused had previously agreed to murder Mr. Din. According to the evidence, as soon as Mr. Wilks and Mr. Abdo exited the red Honda, Mr. Wilks immediately moved around the back of the Honda towards Mr. Din with the loaded firearm and, within a matter of seconds, Mr. Din was shot with this firearm.

[39] The evidence also supports the reasonable inference that, in shooting Mr. Din, Mr. Wilks had the necessary intention for the offence of murder. According to Mr. Din, Mr. Wilks had initially pointed the firearm at his upper body, and he was only shot in the groin area during their ensuing struggle over the firearm. Then, according to Mr. Din, after he was shot, and was lying on the ground, Mr. Wilks stood over him, and again pointed his semi-automatic handgun at his upper body. Mr. Din testified that, at that point, he said: “stop, don’t do this.” Mr. Din then heard a “click” sound two or maybe three times. According to the evidence of Ms. Toni Brinck, a jammed semi-automatic firearm could make such a clicking noise by pulling the trigger. Pulling the trigger of a semi-automatic firearm while it is pointed at the upper body of an intended victim, reasonably supports an inference that the person intended to kill his victim, and might have been successful if the gun had, fortuitously, not been jammed.

E. Conclusion

[40] Clearly, there are a variety of other reasonable inferences and logical conclusions that a reasonable jury, properly instructed, might draw from the evidence that I have outlined. However, as Doherty J.A. indicated in R. v. Jackson, at para. 7, on any directed verdict application, the trial judge “takes the case for the Crown at its highest” in that the trial judge notionally “accepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown.”

[41] In conclusion, for these reasons, and as I have already advised the parties, I am satisfied that there is some evidence in this case, upon which a reasonable jury, properly instructed, could find that the three accused persons are guilty of conspiring together to murder Asher Jalal Din. Accordingly, the directed verdict application by the defence was dismissed.

Kenneth L. Campbell J.

Released: December 18, 2016

CITATION: R. v. Abdo, 2016 ONSC 7957

COURT FILE NO.: CR-4-423/15

DATE: 20161218

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

ABEL ABDO

JOHNATHAN MCLENNAN and

DOMINIQUE JERMAINE WILKS

RULING

DIRECTED VERDICT APPLICATION

K.L. Campbell J.

Released: December 18, 2016