CITATION: R. v. Al-Enzi, 2016 ONSC 8079
COURT FILE NO.: 08-11565
DATE: 2016-12-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
James Cavanagh and Jason Neubauer for the Crown/Applicant
Applicant
- and -
NAWAF AL-ENZI
Alan D. Gold and Etai Hilzenrat, for the Respondent
Respondent
HEARD: December 12, 2016, at Ottawa, Ontario
MADAM JUSTICE B. R. WARKENTIN
REASONS ON CROWN APPLICATION TO INCLUDE PARTY LIABILITY FOR MURDER UNDER s. 21(2) of the CRIMINAL CODE
[1] This is one of a number of rulings made during the course of this homicide trial. For the reasons provided, it was necessary for this ruling to be made in writing because of the manner in which the Crown chose to address the court on this issue.
Background
[2] On December 12, 2016 the Crown’s closing submissions in this lengthy homicide trial were to commence at 1:00 pm. At 11:00 am that morning during a pre-charge conference, when reviewing the second draft of my jury charge, Mr. Cavanagh for the Crown objected to my failure to include liability as a party for murder in the charge to the jury via s. 21(2) of the Criminal Code (aiding and abetting).
[3] I informed Crown counsel that I had considered whether or not to include this route in my charge but had determined that it did not fit the facts of the case as I understood them from the evidence and the Crown’s position that it had been Mr. Al-Enzi who was the principal, the one who shot Mr. Zalal. I had not included this route in either the first or second draft of my charge that both Crown and Defence had reviewed and commented upon. Any reference to other routes to the commission of the offence in my charge to that point were directed to either the lessor and included offences or to the alternate route of constructive first degree murder.
[4] Mr. Cavanagh asked to make submissions, which I permitted. Prior to the Crown’s closing address commencing that afternoon, I informed the Crown that I had not altered my position on my ruling and instructed him to commence his closing submissions on that basis.
[5] The Crown proceeded with their closing submissions which continued into the morning of December 13, 2016. At the close of court on December 12, 2016, Mr. Cavanagh insisted on addressing the court regarding my ruling on the s. 21(2) ruling. I provided him with 5 minutes the morning of December 13, 2016 in the absence of the jury and prior to continuing with his closing submissions and again informed him I would not be reconsidering my decision.
[6] Very early in the morning of December 13, 2016 Mr. Cavanagh sent a legal memorandum and chart by email to my attention and cc’d to the defence, in which he sought to re-open my ruling on the s. 21(2) ruling prior to the Crown completing its closing submissions. That memorandum and chart were made Exhibit P in the trial.
[7] This was the second time Mr. Cavanagh had sought to reopen a ruling that I had made; the first was with respect to the editing of an intercept (intercept 53 of Exhibit 58B) in which the Crown was unhappy with my ruling. On that earlier occasion, I informed Mr. Cavanagh that once my ruling was made, it was not subject to being reopened and reviewed by me during this trial.
[8] On the morning of December 13, 2016, Mr. Cavanagh informed the Court that my ruling on party liability did “[…] a fundamental disservice to the fair trial interests of the community.” and that the Crown fundamentally disagreed with my decision on refusing to put party liability to the jury. I informed Mr. Cavanagh that his comments were unwelcome and that my ruling was not open to further discussion. I directed him to complete his closing submissions without reference to aiding and abetting as an alternate route to a finding of guilt of first degree murder.
Ruling
[9] It was the Crown’s position that there was clearly evidence that more than one person was actually involved in the commission of the murder. In support of that position, the Crown pointed to the following evidence:
a) The intercepted communications disclose Mr. Al Enzi commenting on a variety of occasions in such a fashion as to suggest that he and two others, Mahmoud Kayem and Ali Abdul-Hussein were involved in the shooting of Mohamed Zalal.
b) Mahmoud Kayem’s DNA was found on a cigarette butt located at the scene where the body of Mr. Zalal was found.
c) One witness, Omar Ahmed testified that he spoke with Mr. Zalal on the evening of his death and Mr. Zalal told him he was with a driver named Mo or Moo.
d) The Call Detail Record evidence shows the phone admitted to be that of Mahmoud Kayem in repeated contact with the phone admitted to be that of Mr Al Enzi and then contact between Mr. Kayem’s phone and that of Mr Abdullahi (the phone Mr. Zalal and then Omar Ahmed were alleged to have used) on the evening of August 18, 2006.
[10] The Crown argued that the law in R v Thatcher, 1987 53 (SCC), 1987 32 C.C.C. (3d) 481 (p. 507) applied to the facts of this case:
“where an accused is being tried alone and there is evidence that more than one person was involved in the commission of the offence, to direct the jury with respect to the provisions of s. 21 of the Code, even though the identity of the other participant or participants is unknown, and even though the precise part played by each participant may be uncertain. It is, in my view, however, improper to charge the jury with respect to the liability of the accused as a party under s. 21 where there is no evidence proper to be left with the jury that more than one person was actually involved in the commission of the offence.”
[11] While I do not disagree with the Crown that this is the law with respect to leaving party liability with the jury, I disagree that the route was open to the Crown on the facts of this case.
[12] In order for a person to be considered as either an aider or abettor, an identifiable principal is required and the aider/abettor must:
a) have rendered assistance to the principal for the purpose of aiding the principal (actus reus under s. 21(b)); and
b) have the requisite knowledge of the unlawful act the principal intended to commit (mens rea – 21(b)).
[13] Neither of these elements was present in this case with respect to Mr. Al Enzi nor with respect to either Mr. Kayem or Mr. Abdul-Hussein.
[14] The Crown’s position on this application was that it sought to put to the jury that even if Mr. Al Enzi was not the one who pulled the trigger, he was a party to the offence that might have been committed by either Mr. Abdul-Hussein or Mr. Kayem, both of whom the Crown alleged were in the car with Mr. Al Enzi when Mr. Zalal was shot.
[15] I found that this position could not be found on the evidence that was before the jury in this trial.
[16] The Crown had subpoenaed both Mr. Kayem and Mr. Abdul-Hussein as witnesses. Neither of them appeared at trial in spite of attempts made to locate them. Mr. Kayem and Mr. Abdul-Hussein were both alleged to have been eye-witnesses to the shooting of Mr. Zalal by Mr. Al-Enzi. When they did not appear at trial, the Crown sought to introduce the statements they made to the police prior to the first trial under the principled exception to the rule against the admission of hearsay as well as the evidence of Mr. Abdul-Hussein from the first trial under s. 715 of the Criminal Code. I refused these applications and provided lengthy reasons for my basis for doing so.
[17] In their statements to the police, Mr. Kayem and Mr. Abdul-Hussein both claimed to have had no knowledge of any intention by Mr. Al-Enzi to shoot Mr. Zalal and that the shooting took them both by surprise and was shocking to them.
[18] Nothing in the statements suggest that Mr. Kayem or Mr. Abdul-Hussein could have had any involvement as principals, much less that Mr. Al Enzi was aiding or abetting one or more of them in the commission of the offence. Thus, had these witnesses appeared at trial or had I ordered that their statements to the police and Mr. Abdul-Hussein’s evidence from the first trial be admitted into evidence, it could only have been used to support the proposition that Mr. Al Enzi was the principal or the shooter.
[19] The evidence the Crown claimed was available to them in this trial to support an instruction to the jury that there was another route to find Mr. Al Enzi guilty of first degree murder as a party to the offence (as set out in paragraph 9 above), is not, in my view clearly evidence that there were others involved in the commission of the offence.
[20] That evidence at its highest supported a finding that there were others who were present when the offence was committed; it does not support a finding that one of the others was the actual shooter and Mr. Al Enzi was aiding or abetting them.
[21] Mr. Cavanagh argued that the party liability should be put to the jury because he anticipated the defence would, in their closing submissions, argue that Mr. Al Enzi was not the shooter and was probably not even present when Mr. Zalal was shot.
[22] The evidence in this trial was largely circumstantial. The expert witnesses were unable to say what time Mr. Zalal died and there was no direct evidence of where Mr. Zalal was shot. The murder weapon was never found. Much of the Crown’s case rested on an alleged confession by Mr. Al Enzi to a Mr. Ramin Khaleyi that it was Mr. Al Enzi who shot Mr. Zalal.
[23] In the case of R v Huard, 2013 ONCA 650, 311 O.A.C. 181 the Ontario Court of Appeal at paragraphs 62 and 63 made the following comments about the elements of the offence of s. 21(2) of the Criminal Code:
62 The conduct element requires proof that the aider or abettor provided actual assistance to the principal by doing something that assisted the principal to commit the offence or encouraged the principal to do so. It is not enough that the conduct of the aider or abettor had the effect of helping or encouraging the principal or resulted in the principal's committing the offence: Briscoe, at paras. 14-15.
63 The fault element in aiding or abetting arises from the phrase "for the purpose of", which is expressly stated in s. 21(1)(b) and is implied in s. 21(1)(c). The fault element includes both intent and knowledge. The aider or abettor must intend to help or encourage the principal to commit the offence and must know that the principal intends to commit that offence: Briscoe, at paras. 16-17. The aider or abettor need not share the intent of the principal to commit the offence: Briscoe, at para. 18.
[24] It was my view that the only evidence available to the Crown in this trial was that Mr. AL Enzi was the principal. There was no evidence that Mr. Al Enzi provided actual assistance to someone else to commit the offence, nor that Mr. Al Enzi intended to help or encourage someone else to commit the offence.
[25] The fact that Defence counsel, in their closing submissions, would likely be suggesting to the jury that Mr. Al Enzi was not the shooter and they should consider whether or not he was even present when Mr. Zalal was shot does not open the door for the Crown to put an alternate theory to the jury that is not based in the evidence before the court.
[26] It was for those reasons that the Crown’s application to put party offences to the jury was denied.
Madam Justice B. R. Warkentin
Released: December 22, 2016
CITATION: R. v. Al-Enzi, 2016 ONSC 8079
COURT FILE NO.: 08-11565
DATE: 2016-12-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
NAWAF AL-ENZI
Respondent
REASONS ON CROWN APPLICATION TO INCLUDE PARTY LIABILITY FOR MURDER UNDER s. 21(2) of the CRIMINAL CODE
Warkentin J.
Released: December 22, 2016