CITATION: R. v. Jama, 2017 ONSC 471
DATE: 20170123
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
LIBIN JAMA, SALMA ABDULLE, ABDULAZIZ EGAL and ROGAR BRYAN
Tom Lissaman and Danielle Scott for the Crown
Daniel Brodsky and Allison Pyper for Libin Jama
Robert Nuttall and Angela Ruffo for Salma Abdulle
Dirk Derstine and David Parry for Abdulaziz Egal
David Bayliss and Karen Lau-Po-Hung for Rogar Bryan
HEARD: October 31, 2016
RULING ON DIRECTED VERDICT APPLICATION
TROTTER J.:
INTRODUCTION
[1] The four accused persons were jointly charged with the second-degree murder of John Maclean. At the conclusion of the Crown’s case, Mr. Derstine on behalf of Mr. Egal brought an application for a directed verdict of acquittal. Mr. Brodsky, for Ms. Jama, joined in the application. I dismissed the applications with reasons to follow.[^1] In the meantime, Ms. Jama, Ms. Abdulle and Mr. Egal were found guilty of second-degree murder. Mr. Bryan was acquitted. These are my reasons for dismissing the directed verdict applications.
FACTUAL BACKGROUND
(a) Introduction
[2] What follows is a brief summary of the Crown’s case, mostly as it relates to Ms. Jama and Mr. Egal. Shortcomings and weaknesses in the evidence are not explored in this Ruling because they have no bearing on the directed verdict issue.
(b) Events in the Apartment Building
[3] It was alleged that, on February 12, 2014, the four accused persons were in an altercation with Mr. Maclean at his apartment building in Toronto. The accused did not live in the building. That night they were trespassers, using the building as a place to hang out and consume alcohol.
[4] The evidence led by the Crown did not establish how the dispute with Mr. Maclean arose. What seemed to start as a verbal altercation in a stairwell, close to Mr. Maclean’s second-floor apartment, moved outside into the parking lot. Mr. Maclean was brutally beaten, kicked and stabbed to death. With his t-shirt in tatters, he was left for dead in the freezing cold.
[5] Security cameras recorded the accused persons entering the building together at about 7 p.m. on February 12, 2014. After someone, a stranger, let them into the building, the accused persons seemed to split into two groups (Jama and Bryan; Abdulle and Egal) shortly afterwards. There was a period of time (7:10 p.m. to 8:39 p.m.) when none of them were on camera. The last time was at approximately 8:55 p.m., shortly before the 911 call, which was made at 9:08 p.m.
[6] As already noted, it was alleged that the altercation with Mr. Maclean started in the west stairwell of the building. The exit from this stairwell leads to the parking lot where Mr. Maclean was found. There are security cameras at all of the doors of the building, except the west stairwell door. None of the accused, or Mr. Maclean, was seen leaving the building, leading to the conclusion that they all left through the west stairwell door.
(c) Witnesses to the Attack on Mr. Maclean
[7] Two witnesses observed the attack on Mr. Maclean. Emmalyn Redhead observed from a fourth floor apartment that was about 80’ away. She was the 911 caller. Ms. Redhead saw five people in a huddle and a sixth person off to the side. She heard a loud angry voice with a Somali accent. She saw one person run away from the group. This was Mr. Maclean. A second person walked towards him, but Ms. Redhead did not know whether it was a male or a female. Then the rest of the people came over. There was physical contact between Mr. Maclean and one of the other persons. Mr. Maclean went down and all four individuals started kicking and “stamping” him. Mr. Maclean tried to protect himself. Ms. Redhead continued to hear the same, angry female voice. She described one female with braids (who was more or less agreed to be Ms. Abdulle) who was kicking Mr. Maclean. She heard another female voice. She also observed someone who walked with limp (alleged to be Ms. Jama).
[8] Ms. Redhead did not provide much detail in her descriptions of the attackers. She said one was wearing a hoodie or sweater that had a line on the wrist of the garment. Ms. Redhead was inconsistent on whether it was a tall person (alleged to be Mr. Egal) or a short person (alleged to be Mr. Bryan). Her so-called “final” answer at trial seemed to be the shorter person.
[9] Adbulcadir Elmi witnessed part of the attack on Mr. Maclean. However, he was in a fifth floor apartment that was 172’ away. Mr. Elmi observed two girls kicking “something”, presumably a person, who was obscured by a car in the parking lot. He said one of them was tall and one was short. The tall girl was shouting as she was kicking. Mr. Elmi was not sure how many times they kicked the person. He saw a man standing close to them, who said, “let’s go.” The tall girl stopped kicking and came over to a man described as the “tall guy” or “tallest guy.” The two hugged each other. They walked back kicked the person again, while the short woman stood there. They all left the area afterwards.
[10] In terms of the tall man who the woman hugged, Mr. Elmi said he was wearing a garment that had white sleeves. He was adamant that the person was not dressed in all black. This is significant because, when the four accused entered the building, Mr. Bryan had white sleeves, whereas Mr. Egal was dressed mostly in black. Mr. Elmi was shown police lineups and did not pick Mr. Egal or Mr. Bryan from any of them. However, he said that he did not see anyone who had the same style of hair as Mr. Bryan that night. Mr. Elmi clarified that the girl (alleged to be Ms. Abdulle) was a “very little bit” taller than the man she hugged. Mr. Egal was significantly taller than Mr. Bryan, but close in height to Ms. Abdulle (as discerned from video recordings).
[11] Once the attackers left the area, both Ms. Redhead and Mr. Elmi bravely went to the scene to check on Mr. Maclean. Neither of them had any trouble seeing a very considerable amount of blood around Mr. Maclean. Scene photos confirm this observation.
(d) Fleeing from the Scene
[12] Shortly after the attack, at least three of the accused (Ms. Jama, Ms. Abdulle and Mr. Egal) went to the home of Khadra Abdi, Ms. Jama’s mother. Ms. Jama and Ms. Abdulle went inside. Mr. Egal, and perhaps another male, remained outside. Ms. Abdulle was bleeding and used the washroom. There was a puddle of blood, mixed with water, near the front door. Ms. Jama left a pair of running shoes, soaked in Mr. Maclean’s blood, in the hall closest, which the police eventually seized. Ms. Jama had not returned to the home after leaving them behind.
[13] After about 10 minutes, Ms. Jama, Ms. Abdulle, Mr. Egal and another male departed. A photo of Ms. Abdulle and Mr. Egal, taken later in the night, posing together for the camera, was entered into evidence to establish their continued association afterwards. In the photo, Ms. Abdulle displayed the “rock star” sign with one of her hands.
(e) Paramedics on the Scene
[14] Returning to the scene, when the paramedics arrived, there was little that they could do for Mr. Maclean. They had great difficulty getting him into the ambulance because the amount of blood made his body difficult to lift and move.
[15] Dr. Michael Pickup, a forensic pathologist, testified about Mr. Maclean’s injuries. In short, he sustained two fatal stab wounds. One was to his heart, which bled internally. The other severed his femoral artery and bled profusely, accounting for the large pool of blood observed at the scene. Mr. Maclean sustained seven other stab wounds (one of which was potentially fatal), cuts (some consistent with defensive action), a fractured jaw, a fractured rib, as well as many scrapes, bruises and abrasions. Mr. Maclean had been beaten. However, the beating did not cause, nor did it accelerate, his death. Dr. Pickup was unable to say how many knives were used on Mr. Maclean that night.
(f) Blood and DNA Analysis
[16] Much blood was found at the scene. Most of it was Mr. Maclean’s. Some belonged to Ms. Abdulle.[^2] Suggestions were made to Crown witnesses that Mr. Maclean hit Ms. Abdulle with a bottle. But this was not established during the Crown’s case. There was one area of blood, close to where Mr. Maclean was found, that contained a mixture of his blood and Ms. Abdulle’s.
[17] In addition to her shoes being significantly stained with Mr. Maclean’s blood, Ms. Jama’s DNA was found under Mr. Maclean’s fingernails. There was no DNA evidence linking Mr. Egal.
(g) The Police Interviews of Ms. Jama and Mr. Egal
[18] Ms. Jama was interviewed on February 28, 2014. She refused to answer many questions, telling the officers that she wanted to sleep. Shown a photo of Mr. Maclean, she said, “No, I haven’t seen that person in my life.” She was shown an image of herself and her co-accused entering the building on February 12, 2014. She identified herself but said she could not identify anyone else because the image was too blurry. It was open to the jury to find that this was a lie.
[19] Mr. Egal was arrested on March 11, 2014. He refused to answer most questions. He denied killing Mr. Maclean. He denied having anything to do with Ms. Abdulle that night, even though they were captured on video together, alone, being demonstrative. He denied knowing that Ms. Abdulle was injured that night, when she clearly was.
THE POSITIONS OF THE PARTIES
[20] Mr. Derstine argued that the rule in Hodge’s Case (1838), 2 Lewin, 168 E.R. 1136 applies to directed verdict applications. In other words, given that the case against Mr. Egal is entirely circumstantial, before allowing the case to go to the jury, I must be satisfied that the guilt of Mr. Egal is the only reasonable inference to be drawn from the evidence: R. v. Villaroman (2016), 2016 SCC 33, 338 C.C.C. (3d) 1 (S.C.C.), at pp. 16-17. Second, Mr. Derstine argued that there was no evidence upon which a reasonable and properly instructed jury could be satisfied that Mr. Egal was one of the persons involved in the attack on Mr. Maclean. Third, he argued that, even if there was some evidence identifying Mr. Egal, the evidence did not prove that he had one of the intents for murder as a principal (Criminal Code, s. 229(a)(i) or (ii)) as an aider or abettor (s. 21(1)(b) and/or (c)).[^3]
[21] Mr. Brodsky argued that there was no evidence that Ms. Jama did anything that contributed to Mr. Maclean’s death. He relied on the evidence of the pathologist that Mr. Maclean was killed by the stab wounds, and not by being beaten. Mr. Brodsky submitted that the evidence limited Ms. Jama’s participation to merely kicking Mr. Maclean, perhaps after he was already dead. Moreover, he submitted that there was no evidence from which it could be inferred that Ms. Jama had the intent for second-degree murder, either as a principal or as a party.
[22] On behalf of the Crown, Mr. Lissaman argued that Hodge’s Case has no application to directed verdicts. Moreover, he submitted that there was circumstantial evidence that identified Mr. Egal and Ms. Jama as participants in the deadly attack on Mr. Maclean and that the jury could infer the presence of murderous intent on the part of both of them.
ANALYSIS
(a) Directed Verdicts and Hodge’s Case
[23] The test for granting a directed verdict is well-known – the evidence adduced by the Crown must establish that a properly instructed jury, acting reasonably, could convict an accused person of the offence charged: see U.S.A. v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067.
[24] The application of this test is straightforward when dealing with direct evidence. In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, Chief Justice McLachlin identified issues that sometimes arise in cases that rest on circumstantial evidence (at p. 840):
The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed…The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [emphasis added]
[25] Mr. Derstine attempts to advance the analysis one step further by melding the test in Shephard with the rule in Hodge’s Case. However, despite his able argument, there is no binding authority that supports the applicability of Hodge’s Case to a directed verdict application.
[26] I acknowledge that, in R. v. Collins, [2003] O.J. No. 820 (S.C.J.), Molloy J. held that Hodge’s Case applies in the circumstances. However, Collins has not been generally followed or affirmed. See R. v. Ahmad, 2015 ONSC 2473.[^4]
[27] Although earlier authority from the Supreme Court of Canada held that Hodge’s Case applied to directed verdict applications (see R. v. Comba, 1938 CanLII 7 (SCC), [1938] S.C.R. 396), in a steady line of decisions, that Court has since decided that it does not: see R. v. Paul, 1975 CanLII 185 (SCC), [1977] 1 S.C.R. 181, Lavoie v. The Queen, 1977 CanLII 212 (SCC), [1977] 1 S.C.R. 193, R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802 and R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154. In R. v. Charemski 1998 CanLII 819 (SCC), [1998], 1 S.C.R. 679, Bastarache J. (for the majority), referring to Monteleone, dealt with the matter definitively at p. 684:
Where the evidence is purely circumstantial, this Court made it quite clear [in Monteleone], at p. 161, that the issue of whether the standard set in Hodge's Case has been met is a matter for the jury, and not the judge: "The question of whether circumstantial evidence meets the requirement of the so-called rule in Hodge's Case . . . is for the jury to determine. This was settled in Mezzo.”… In other words, whether or not there is a rational explanation for that evidence other than the guilt of the accused, is a question for the jury.
[28] In Collins, Molloy J. held that, in Acruri, McLachlin C.J.C. (writing for a unanimous Court) adopted her dissenting reasons in Charemski that Hodge’s Case applies to directed verdict applications. With respect, I disagree. While the Chief Justice held that judges at the committal or directed verdict stages may engage in a “limited weighing” of circumstantial evidence, she did not purport to reverse the Court’s five previous decisions (Paul, Lavoie, Mezzo, Monteleone and Charemski) to the contrary.[^5] Hodge’s Case is not even referred to in Arcuri.
[29] The inapplicability of Hodge’s Case at this juncture is indirectly confirmed in recent discussions of directed verdict decisions. For example, in R. v. Bains (2015), 2015 ONCA 677, 328 C.C.C. (3d) 149 (Ont. C.A.), a case involving circumstantial evidence, the Court reviewed the trial judge’s dismissal of a directed verdict application. After setting out the governing authorities from the Supreme Court of Canada, and relying heavily on Arcuri, Watt J.A. stated at pp. 183-184:
The standard on a directed verdict application does not differ according to whether the Crown's case consists of direct or circumstantial evidence. But the nature of the judge's task varies according to the nature of the evidence adduced. Where the evidence of any essential element is entirely circumstantial, the judge engages in limited weighing of the evidence to determine whether the evidence, considered as a whole, is reasonably capable of supporting the inference the Crown seeks to have the trier of fact draw about that essential element: Arcuri, at para. 23.
The limited weighing of circumstantial evidence on an application for a directed verdict does not entitle the judge to draw factual inferences, assess credibility or ask whether he or she would find guilt established if assigned the role of trier of fact: Arcuri, at para. 23. Provided the judge concludes that the evidence as a whole, if believed, could reasonably support an inference of guilt, a directed verdict motion will fail: Arcuri, at paras. 23, 30, 33. [emphasis added]
Nowhere in his analysis does Watt J.A. endorse Hodge’s Case at this stage. That is because the “limited weighing” inherent in directed verdict applications does not equate with rule in Hodge’s Case, which is essentially a warning, aimed at the trier of fact, “about too readily drawing inferences of guilt:” see Villaroman, p. 16.
[30] In conclusion, a circumstantial case may survive a directed verdict application when it is possible for the trier of fact to draw more than one inference (i.e., guilty or not guilty) from the evidence. It is the jury that is tasked with choosing from competing inferences, not the trial judge on a directed verdict application. The permissible “limited weighing” permits a trial judge to engage with the evidence, in the sense of sifting out inference from mere speculation. But this is a far cry from applying a rule that forbids a specific path of reasoning in the final evaluation of the complete evidentiary record.
(b) The Case Against Mr. Egal
[31] As noted above, I concluded that there was evidence upon which a jury, properly instructed and acting reasonably, could conclude that Mr. Egal was involved in a deadly, concerted attack on Mr. Maclean. His participation may be inferred from the following evidence:
• Mr. Egal was with the three co-accused when they entered the building. He is observed on video with Ms. Abdulle at 8:55 p.m., moving in the direction of the west stairwell, minutes before the attack and Ms. Redhead’s 911 call at 9:12 p.m.;
• A vodka bottle with Mr. Maclean’s DNA on it was found in the parking lot, close to where he was found dead. Mr. Egal was seen on video, carrying a vodka bottle, earlier in the evening. He acknowledged the vodka bottle in his police interview;
• The tall woman with braids described by Mr. Elmi, who was almost certainly Ms. Abdulle, was seen kicking someone or something on the ground. She then came over and hugged a tall man, who then went with her and started kicking again. The identity of this man was highly contentious. Counsel for Mr. Bryan suggested it was Mr. Egal; counsel for Mr. Egal said it was Mr. Bryan. As the evidence stood at the time, I determined that it would have been open to the jury to find that it was Mr. Egal who Ms. Abdulle hugged, especially given that the two of them had been demonstrative with each other earlier in the evening, as captured on video;
• Mr. Egal was identified at Ms. Abdi’s home, along with Ms. Jama and Ms. Abdulle, shortly after Mr. Maclean was killed;
• Mr. Egal continued to associate with Ms. Abdulle late into the night, appearing in a posed photograph with Ms. Abdulle; and
• Mr. Egal told a number of falsehoods in his statement to the police, including that he did not know that Ms. Abdulle was injured that night (when it is obvious that she was) and that he did not go to Ms. Abdi’s home afterwards (which he clearly did).
[32] I recognize that it would have been open to the jury to draw inferences in Mr. Egal’s favour. However, the evidence also permitted a number of negative inferences. As the Court of Appeal said in R. v. Dwyer, 2013 ONCA 368, at para. 4: “Reasonable inferences are not necessarily likely or probable inferences….Difficult inferences to draw may still nonetheless be reasonable.”
[33] In a case alleging participation in a concerted attack, a trier of fact may find all guilty as principals or aiders or abettors, even though the extent of individual participation in the fatal violence is unclear: see R. v. Fatima (2006), 2006 CanLII 63701 (ON SC), 42 C.R. (6th) 239 (Ont. S.C.J.), at para. 58 and R. v. Wood (1989), 1989 CanLII 7193 (ON CA), 51 C.C.C. (3d) 201 (Ont. C.A.), at p. 220. In other words, a jury need not determine who delivered the fatal blow or blows before finding an accused person guilty: R. v. Ball (2011), 2011 BCCA 11, 267 C.C.C. (3d) 532 (B.C.C.A.), leave refused 430 N.R. 390n and R. v. Alexis (2002), 2002 BCCA 103, 163 C.C.C. (3d) 387 (B.C.C.A.). In terms of the requisite intent for murder (either directly under s. 229(a)(ii)), or as a party under s. 21(1)(b) or (c)), it would have been open to the jury to conclude that Mr. Egal was part of the group of people that Ms. Redhead observed attacking Mr. Maclean. It would also be open to a jury to conclude from Mr. Elmi’s evidence that Mr. Egal also joined Ms. Abdulle in kicking Mr. Maclean, again, after he was already on the ground. Given the condition that Mr. Maclean must have been in at the time, with blood everywhere around him, it would not be difficult for the jury to conclude that those were attacking this prone man at that time wanted him dead.
(c) The Case Against Ms. Jama
[34] The case against Ms. Jama was more straightforward. Among other evidence, a jury could infer that she was one of the persons who was involved in the attack on Mr. Maclean, based on the following:
• She was with the her 3 co-accused as they all entered the building at 7:03 p.m. on February 12, 2014;
• Ms. Jama was shown on security camera footage at 9:56 a.m., at the west stairwell, moments before the attack on Mr. Maclean;
• Ms. Redhead’s description of one of the female attackers fits Ms. Jama. Mr. Elmi’s description of one of the attackers fits Ms. Jama;
• Ms. Jama left the scene and went to her mother’s home where she left in a hall closet a pair of shoes that were soaked with Mr. Maclean’s blood. The jury could infer guilt from the manner in which she dealt with the shoes;[^6]
• Ms. Jama’s DNA was found under Mr. Maclean’s fingernails. This fact is inconsistent with Ms. Jama’s participation being limited to kicking Mr. Maclean. It is indicative of her involvement earlier in the chain of events, consistent with Ms. Redhead’s observations of four people attacking Mr. Maclean; and
• The DNA on her shoes would be a damning piece of evidence, combined with the evidence showing the lighting conditions at the time. It was open to the jury to find that it would have been easy to see the Mr. Maclean’s massive loss of blood. It was also open the jury to find that Ms. Jama did not need to see the blood in order to know the extent of Mr. Maclean’s injuries because she inflicted them, or was a knowing participant in the concerted attack that resulted in them.
[35] Based on this evidence, I determined that there was sufficient evidence of identity to permit the case to be considered by the jury. For the reasons set out above in relation to Mr. Egal, concerning the requisite intent for murder, the same applies to Ms. Jama.
CONCLUSIONS
[36] For these reasons, the directed verdict applications were dismissed.
TROTTER J.
RELEASED: January 23, 2017
CITATION: R. v. Jama, 2017 ONSC 471
DATE: 20170123
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
LIBIN JAMA, SALMA ABDULLE, ABDULAZIZ EGAL and ROGAR BRYAN
RULING ON DIRECTED VERDICT APPLICATIONS
TROTTER J.
RELEASED: January 23, 2017
[^1]: I dismissed Ms. Jama’s application at the conclusion of argument on October 31, 2016. I dismissed Mr. Egal’s application on November 1, 2016.
[^2]: In this Ruling, I describe blood or DNA material as “belonging” to certain individuals. The improbability of coincidence of a random donor for the various samples ranged from 1 in 110 million to 1 in 110 quadrillion.
[^3]: Throughout most of the trial, the case proceeded on the theory that the accused were guilty either as co-principals and/or as parties. During the pre-charge conference, the Crown agreed that liability would be predicated on liability as co-perpetrators under s. 21(1)(a). Ultimately, the jury was not instructed on party liability under s. 21(1)(b) or (c). The directed verdict application proceeded on the assumption of a broader approach to liability, as do these reasons.
[^4]: See also R. v. Hong, 2015 ONSC 4562, in which Boswell J. held that Hodge’s Case did not apply to a directed verdict application.
[^5]: S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed. (Toronto: Canada Law Book, 2013) (looseleaf), ¶27:20:20:20:20.
[^6]: In my charge to the jury, I instructed the jury on this post-offence conduct. However, the jury was warned that this evidence could not be used to distinguish between liability for manslaughter and second-degree murder. See David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), Final 27A).