Court File and Parties

COURT FILE NO.: CR-16-4-279-00MO DATE: 20170316

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – AKEEM BAILEY Applicant

Counsel: Tanya M. Kranjc, for the Crown, Respondent Ariel Herscovitch, for Akeem Bailey, Applicant

HEARD: March 6, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT on certiorari application

BACKGROUND

[1] On April 16, 2015, Akeem Bailey was driving a black Hyundai in the area of the townhouse complex at Driftwood Avenue and Jane Street in Toronto. There were three other men in the car with him. Mr. Bailey drove the men to a parking lot near the townhouse complex. The three men got out of the car, went around the corner to a townhouse, and fired shots at individuals in front of unit #1 of the housing complex. Five people were shot, but none died. It appeared to have been a deliberate shooting with specific targets. After the gunmen emptied the magazines of their handguns, they ran back to the Hyundai. Mr. Bailey drove away. He engaged in evasive manoeuvers. A Toronto Police surveillance team was in the area. The team chased down the Hyundai and boxed it in. The other men attempted to flee. Mr. Bailey was prudently (or imprudently, depending on one’s point of view) wearing his seatbelt. The seatbelt prevented him from fleeing as well. He was arrested in the car.

[2] Mr. Bailey was charged with multiple offences:

• Five counts of attempted murder contrary to s. 239(1) of the Criminal Code;
• Five counts of discharging a firearm with intent to wound, maim, disfigure, or endanger life contrary to s. 244(1) of the Criminal Code;
• One count of possession of a loaded restricted or prohibited firearm contrary to s. 95(1) of the Criminal Code;
• One count of knowingly having a firearm in a motor vehicle contrary to s. 94(1) of the Criminal Code;
• Two counts of possessing a firearm while being prohibited from doing so contrary to s. 117.01(1) of the Criminal Code;
• Two counts of failing to comply with a probation order contrary to s. 733.1(1) of the Criminal Code;
• One count of failing to comply with a recognizance, contrary to s. 145(3) of the Criminal Code.

[3] Mr. Bailey was charged with two others on the attempted murder and discharging a firearm counts. The Crown’s theory was that Mr. Bailey knowingly drove the Hyundai as part of a specific plan to carry out a specific crime: the murder of an individual or individuals at 404 Driftwood Crescent. Mr. Bailey was committed for trial on all counts by Bacchus J. of the Ontario Court of Justice.

[4] Mr. Bailey applies to quash the committal for trial on the five counts of attempted murder. His counsel, Mr. Herscovitch, argues that attempted murder is a crime of specific intent. The Crown was required to introduce some evidence that Mr. Bailey possessed specific knowledge of the plan to kill. There was no such evidence presented at the preliminary inquiry. Accordingly, he argues, Bacchus J. committed jurisdictional error when she ordered Mr. Bailey to stand trial on the attempted murder counts. Mr. Herscovitch wisely does not seek to quash the committals on the other counts.

[5] For the reasons that follow, I respectfully disagree. The application is dismissed.

REASONS OF THE PRELIMINARY INQUIRY JUDGE

[6] The preliminary inquiry judge instructed herself on the elements of the offence of attempted murder, and pointed out that an aider and abettor is guilty if he or she knows that the principal intends to kill: R. v. Ancio, [1984] 1 S.C.R. 225. The preliminary inquiry judge was aware that a party must have knowledge of the intention of the principal to commit murder, not just to commit some other violent offence. She was aware that objective foreseeability of death or injury is not enough to found liability: R. v. Adams (1989), 49 C.C.C. (3d) 100 (Ont. C.A.).

[7] Bacchus J. found that the evidence as a whole was capable of supporting an inference of guilt beyond a reasonable doubt on the attempted murder charges. She was aware that there was no direct evidence that any of the accused knew the victims or that there was a history of animus. She was, however, satisfied that the victims were targeted. She found that the evidence was “overwhelming” that the gunmen were engaged in a plan to target individuals and kill them, execution style. She distinguished the case from random shootings, such as that described in R. v. Whittaker, 2007 ONCJ 14. Bacchus J. did find that it was a reasonable inference that Mr. Bailey knew of and consented to the plan to kill the targets. As this was a circumstantial case, she instructed herself that she was required to engage in a limited weighing of the evidence to determine if it could support a finding of guilt by a jury: R. v. Arcuri, [2001] 2 S.C.R. 828.

ANALYSIS

[8] The sole issue on this application is whether there was some evidence presented at the preliminary inquiry upon which a reasonable jury, properly instructed, could convict Mr. Bailey of attempted murder: United States of America v. Shepard, [1977] 2 S.C.R. 1067. If there was, then the preliminary inquiry judge committed no error in ordering Mr. Bailey to stand trial. If there was no such evidence, then she made a jurisdictional error: R. v. Deschamplain, [2004] 3 S.C.R. 601 at para. 23.

[9] Mr. Herscovitch argues that the evidence does not support an inference that Mr. Bailey knew that the gunmen had a specific intent to kill. He concedes that there is evidence to support an inference that Mr. Bailey knew that the gunmen were going to carry out a crime or possibly even a shooting. That, he argues, is not enough. There must be more than a general knowledge of an intention to commit some crime. He further argues that the post-offence conduct relied on by the preliminary inquiry judge has no probative value.

[10] Despite Mr. Herscovitch’s very persuasive arguments, I must respectfully disagree. I find that there was evidence to support the preliminary inquiry judge’s decision when the whole of the evidence is considered. I will deal with each of his arguments in turn.

(a) Does the totality of the evidence support an inference that Mr. Bailey knew the gunmen were going to kill someone?

[11] In order to convict a person of attempted murder, a trier of fact must be satisfied beyond a reasonable doubt that the accused had the specific intention to kill: R. v. Ancio, [1984] 1 S.C.R 225. Objective foreseeability of death a result of the actions of the accused is not enough for a conviction for attempted murder: R. v. Jeffrey (1989), 35 O.A.C. 321 (C.A.). Neither is recklessly firing a gun into a crowd without the specific intent to kill: R. v. Whittaker, supra.

[12] This is a circumstantial case. There is no direct evidence that Mr. Bailey knew that the men in the car with him were going to try and kill a specific person or persons. Therefore, the preliminary inquiry judge was required to conduct a limited weighing of the evidence in order to determine whether, on the whole of the evidence, a jury could be satisfied beyond a reasonable doubt that Mr. Bailey was guilty of each element of the offence of attempted murder: Arcuri, supra.

Bacchus J. pointed to the following evidence:

• Mr. Bailey drove the gunmen close to the targeted residence;
• He immediately positioned the car so that the gunmen could easily get back to the car and make a quick getaway;
• Mr. Bailey was aware of the shots fired and, having some idea of what transpired, he allowed the gunmen back into the car and drove them away.

[13] In R. v. Fatima (2006), 42 C.R. (6th) 239 (Ont. S.C.) Watt J. (as he then was) observed that an inference of pre-concert may be noted from the circumstances. He stated at paras. 56-57:

It is worth recall that an accused may participate in an offence, including murder, in different ways. As a sole or joint principal. As an aider or abettor. Or as a party to a common unlawful purpose In the execution of which murder by another is a reasonably foreseeable consequence.

In some instances, there may be no evidence that shows or tends to show the precise role played by each of two persons jointly charged. An inference of concerted or pre- concerted action may be drawn from the circumstances, for example, where the persons charged had exclusive custody and control over the deceased… And where there is evidence of concerted action, a trier or fact may adjudge all guilty either as principals or as aiders or abettors, even though the extent of individual participation in the fatal violence is unclear… [citations omitted]

[14] I agree Crown counsel that the video shows Mr. Bailey manoeuvring his vehicle to put it into position for a quick getaway. The brake lights of the car stay on while Mr. Bailey is waiting for the gunmen to return, meaning that he never put the car in “park”.

[15] I also agree that the evidence supports the inference that the gunmen clearly executed a plan for a targeted killing. They appear to have done reconnaissance before using the same car that Mr. Bailey was driving at the time of the shooting. The gunmen began shooting as soon as they came into view of the targets. They then had a clear plan for retreat and getaway.

[16] There was a surveillance camera at 404 Driftwood. It shows the gunmen coming around the corner of the townhouse units. It shows that they quickly began firing handguns at the people in front of Unit #1 of 404 Driftwood. From the recovered shell casings the police determined that the three gunmen fired 22 shots. Only 12 seconds elapsed from the moment the gunmen began shooting until they left. Five victims were shot. A baby stroller was also shot. Fortunately there was no baby in it. One of the gunmen appeared to pursue a specific victim into the unit.

[17] In my respectful view, there is evidence to support the preliminary inquiry judge’s finding that would be open to a jury that the driver of the getaway car was privy to that plan. That is so when the manoeuvring and the waiting is taken into account. If there are competing inferences to be drawn, then they must be drawn in favour of the Crown: R. v. Sazant, [2004] 3 S.C.R. 635 at para. 18. The Crown’s case, taken at its highest, was reasonably capable of supporting an inference that Mr. Bailey was aware that the plan was to carry out a targeted killing. In my respectful view, the preliminary inquiry judge made no jurisdictional error in this regard.

(b) Does the post-offence conduct have any probative value?

[18] Bacchus J. also pointed to the following evidence as evidence that Mr. Bailey knew of the plan for a targeted killing:

• While fleeing the scene, Mr. Bailey engaged in evasive manoeuvres to avoid detection;
• Two of the occupants of the vehicle pointed and laughed at a marked York Regional Police vehicle as they sped away from the scene;
• After the vehicle was stopped, a police officer testified that he turned his attention away from Mr. Bailey for a moment while he was on the radio, and heard metal hitting the pavement. He located a handgun with the slide locked to the rear and the magazine empty. Shell casings located at the scene matched this handgun to one of the weapons used at the scene.

[19] Mr. Herscovitch argues that this evidence constitutes post-offence conduct. He concedes that it may go to a charge of accessory after the fact. He says, however, that it is consistent with any number of possible offences, only one of which could be attempted murder. He relies on the following passage from R. v. Arcangioli, [1994] 1 S.C.R. 129 at para. 43:

The test articulated in Myers provides helpful guidance on the inferences that may be drawn from evidence of an accused's flight (or other possible indicia of consciousness of guilt, such as lying). Such evidence can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently, where an accused's conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.

[20] I agree with Mr. Herscovitch to the extent that each piece of post-offence conduct evidence, viewed in isolation, might attract a “no probative value” instruction to a jury (although I am not sure about the gestures in the direction of a police car are capable of any particular inference). However, a trial judge will instruct a jury that they must consider the evidence as a whole. The circumstances of this case are such that the evasive manoeuvres and the dropping of the gun (if a jury makes that finding) cannot be viewed in isolation. In my view, the preliminary inquiry judge did not err in this regard either.

DISPOSITION

[21] The application is dismissed.

R.F. Goldstein J. Released: March 16, 2017