CITATION: R. v. Mankda, 2017 ONSC 5745
COURT FILE NO.: CR-17-30000663-0000
DATE: 20170929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
AIMAN MANKDA
Applicant
Patrick Woods and Matthew Shumka, for the Crown
Jennifer Penman, for the Applicant
HEARD: September 26, 2017
RULING ON AN APPLICATION FOR A DIRECTED VERDICT
b. p. o’marra j.
OVERVIEW
[1] In the early afternoon of June 1, 2015, Mahmedaarif “Arif” Patel entered a barbershop in Toronto. He was wearing a hoodie over his head, sunglasses and white work gloves. He was also carrying a loaded handgun under his waistband. Syed Mohammed “Ali” Zaidi sat in one of three barber chairs having his hair cut. He also had a loaded handgun readily accessible. There was a verbal exchange between Patel and Zaidi. Patel reached for his waistband area. Zaidi rose and fired at least two shots that struck Patel in the right chest and left forearm. Patel staggered out of the barbershop and died very shortly thereafter.
[2] Aiman Mankda knew both Patel and Zaidi before these events occurred. On June 1, 2015 he had a verbal exchange with Zaidi in the barbershop before the shooting when Patel was not yet present. He also had some contact with Patel before Patel entered the barbershop that day. Aiman Mankda was not present in the barbershop when Zaidi shot Patel. Aiman Mankda met Patel outside the barbershop after the shooting and frantically sought help in getting medical attention for his fatally wounded friend.
[3] Aiman Mankda faces a single count on this indictment as follows:
AIMAN MANKDA stands charged that he, on or about the 1st day of June in the year 2015, at the City of Toronto, in the Toronto Region, did unlawfully kill Mahmedaarif PATEL and thereby commit manslaughter, contrary to section 236 of the Criminal Code of Canada.
[4] At the conclusion of the Crown’s case, Aiman Mankda applied for a directed verdict before declaring whether or not he intended to call any evidence.
[5] On September 26, 2017 the application for a directed verdict of not guilty was granted. These are my reasons.
THE EVIDENCE
[6] Much of the evidence led by the Crown was not challenged by the defence.
[7] Musab Sarkar is 22 years old. He has known both Aiman Mankda and Zaidi for many years. On June 1, 2015 he and Aiman Mankda agreed to meet after a text exchange. Their plan was simply to “hangout” and spend some time together. They went to a convenience store near the barbershop to buy cigarettes. Aiman Mankda stopped to look through the front window of the barbershop. Shortly thereafter he entered the barbershop. Sarkar entered and stood inside the foyer near the front door.
[8] Sarkar could not recall many specifics of the verbal exchange between Aiman Mankda and Zaidi other than the tone was angry and included expletives from Zaidi. The barber tried to calm things down and walked Aiman Mankda out of the shop. Sarkar referred to Aiman Mankda “storming out”. Sarkar then entered the shop and tried to smooth things over with Zaidi who responded with more expletives and refused to shake Sarkar’s offered hand.
[9] Sarkar then left the barbershop and rejoined Aiman Mankda. They walked to a nearby vacant bench and sat down. Aiman Mankda told Sarkar that there had been a problem between Zaidi and Patel in the past but he hoped they could both “move on” from it. Sarkar noticed that Aiman Mankda was texting and/or using his phone. His impression was that Aiman Mankda was communicating with Patel and that Aiman Mankda was to meet Patel somewhere.
[10] Dwane Robinson was one of the two barbers working that day. Zaidi and Patel were both long time customers of his. Aiman Mankda was also a customer although not as often or for as long as the other two. Dwane Robinson was cutting Zaidi’s hair when Aiman Mankda walked into the shop and had a verbal exchange with Zaidi. Aiman Mankda asked Zaidi why he had not responded to something on Facebook. Aiman Mankda spoke in a calm voice. Zaidi initially gave no response and then said he would answer when he was ready. Dwane Robinson described a “bit of an argument” ensued between Zaidi and Aiman Mankda. Dwane Robinson told them to stop and “take it outside”. The argument got louder and Dwane Robinson walked Aiman Mankda out of the shop and told him to leave. Aiman Mankda told Dwane Robinson that he should tell Zaidi to leave. Dwane Robinson told Aiman Mankda he would not do so since Zaidi was a customer. Dwane Robinson saw Aiman Mankda and another man (Sarkar) walk across the street together. Another customer named Burt Hill came into the shop. He was an off duty police officer and long-time customer of Dwane Robinson
[11] Sometime later as Zaidi was still in the barber chair Patel entered the shop. He wore sunglasses and had a hoodie over his head. His hands were in his pocket. Patel asked “what’s up?” Dwane Robinson was not sure whether this was addressed to himself or Zaidi. Dwane Robinson knew that Patel was a friend of Aiman Mankda’s. He asked Patel to leave and walked him towards the front door. Near the doorway, Dwane Robinson saw Patel reach for something from his waistband area. He saw a brown handle but was not sure what it was. Dwane Robinson told Patel to leave. Patel directed a comment towards Zaidi to the effect of “if you think you are bad come outside.” Zaidi said he was not afraid of him. Dwane Robinson looked back and saw Zaidi out of the chair and pointing with something in his hand. Dwane Robinson heard a shot and saw Patel lean over. Dwane Robinson ran to an exit at the back of the shop. He went directly to the nearby convenience store and told someone there to call 911 in regard to a shooting.
[12] Christopher Williams was the second barber working that day. He heard two shots fired. Before the first shot he saw Dwane Robinson’s customer (Zaidi) holding a gun and putting a shell in the chamber. He did not see Patel pull a gun out but saw him reach for his waistband.
[13] Iqramulhaque Isabhai has known both Aiman Mankda and Patel for many years. On June 1, 2015, he drove to the plaza to go into the convenience store near the barbershop. He saw Aiman Mankda and Patel together and they exchanged greetings. Patel asked him for some small change so he would not have to break a $20 bill. He was wearing a hoodie, sunglasses and work gloves. Not long thereafter Isabhai was driving near the plaza and saw Aiman Mankda and Patel together. Aiman Mankda asked Isabhai to drive himself and Patel to a hospital. Aiman Mankda and another man helped Patel into the back seat. Aiman Mankda was crying and very emotional as they drove away.
[14] Isabhai called 911. He was told to pull off the road and await the ambulance. He pulled into a nearby gas station. Police and ambulance arrived very shortly thereafter.
[15] Burt Hill was the off duty police officer who happened to be in the barbershop after Aiman Mankda had left and before Patel entered. He was a long-time customer of that barbershop. He did not know Patel or Aiman Mankda before June 1, 2015. He observed a man wearing a baseball cap enter the shop. He recalls that man wearing a hoodie that was not over his head. He was not wearing sunglasses. Burt Hill heard an angry exchange between Dwane Robinson’s customer (Zaidi) and the man who entered. There were expletives uttered and reference to Facebook. The man in the baseball cap was angry and accusatory. He told Zaidi words to the effect of “why you snitch on me, on Facebook”. Dwane Robinson guided the man in the baseball cap towards the front door of the shop. Burt Hill saw that man reach towards his waistband. He thought it was probably to pull out a gun. He then looked back and saw Zaidi now out of his chair and holding/pointing a handgun with his arm extended. Burt Hill dove for the floor and heard three shots fired. After the incident, he saw a handgun on the ground outside the front area of the barbershop. That handgun was loaded with four rounds of live ammunition. Burt Hill did not see Aiman Mankda in the shop at any time during this incident.
[16] Mohammad Zaidi is the 24-year-old brother of Ali Zaidi. He knew Patel for a few years. He had a brief discussion with Patel a day or two before June 1, 2015. Patel told him that there was no longer a “beef” or problem between Patel and Ali Zaidi. Mohammad Zaidi was glad to hear this. He and Patel shook hands and parted ways.
[17] Cell phone records filed on consent showed calls between phones connected to Aiman Mankda and Patel shortly before the shooting.
UNLAWFUL ACT MANSLAUGHTER
[18] Unlawful act manslaughter requires proof that the accused committed an unlawful act that caused the death of another person. The unlawful act must be dangerous in the sense that a reasonable person in the same circumstances would realize that it was likely to put another person at risk of bodily harm. It does not require foreseeability of death: see R v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3 at paras. 73, 74 & 78.
[19] The causation aspect is met if the unlawful act was a contributing cause beyond de minimis to the death: R. v. Smithers (1977), 1977 CanLII 7 (SCC), 34 CCC (2d), 427 (SCC) at p. 435-436; R. v. Nette (2001), 2001 SCC 78, 158 CCC (3d) 486 (SCC).
EVIDENTIAL BURDEN ON A DIRECTED VERDICT APPLICATION
[20] The test to determine whether a case should go to the jury is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty: USA v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067 at p.1080. “Sufficient evidence” means sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt: R. v Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679 at para. 35.
ANALYSIS
[21] The Crown properly concedes that proof of the requisite knowledge and intent for the unlawful act in this case depends on circumstantial evidence.
[22] Contested factual matters can be proven by circumstantial evidence. The probative value of circumstantial evidence covers a wide spectrum from overwhelming to minimal. The Crown is not required to prove individual pieces of evidence beyond a reasonable doubt: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 at para. 21. Where proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, the jury must be instructed that an inference of guilt can only be drawn from the circumstantial evidence if it is the only reasonable inference that such evidence permits: R. v. Villaroman, 2016 SCC 33 at para. 30.
[23] The critical difference between reasonable inferences and speculation based on circumstantial evidence is referred to in Watt’s Manual of Criminal Evidence (2017) in the commentary at at 9.01:
Where evidence is circumstantial, it is critical to distinguish between inference and speculation. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.
[24] In the United States of America v. Huynh, 2005 CanLII 34563 (ON CA), [2005] O.J. No. 4074 (C.A.) at para. 7, Doherty J.A. indicated that “(the) process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess”.
[25] Proof of the requisite unlawful act in this case requires evidence that Mankda aided, abetted or counseled Patel to confront and threaten Zaidi in the barbershop. There is direct and circumstantial evidence of contact between Patel and Mankda shortly before and immediately after the shooting. There is no evidence as to what they discussed before Patel entered the barbershop. There is no evidence that Mankda knew that Patel had a loaded handgun when he entered the barbershop. Based on the circumstantial evidence there is no basis beyond speculation for the jury to find that the requisite knowledge and intent for Mankda is the only reasonable inference to be drawn. On this basis there must be a directed verdict of acquittal.
B. P. O’Marra J.
Released: September 29, 2017
CITATION: R. v. Mankda, 2017 ONSC 5745
COURT FILE NO.: CR-17-30000663-0000
DATE: 20170929
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
AIMAN MANKDA
Applicant
ruling on an application for a directed verdict
B. P. O’Marra J.
Released: September 29, 2017