R. v. Grant and Kawano, 2017 ONSC 6661

CITATION: R. v. Grant and Kawano, 2017 ONSC 6661

COURT FILE NO.: 7-54215

DATE: 20171106

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Alton Grant and Shaqwan Kawano

Defendants

D. Ishak and Jennifer Armstrong, for the Crown

S. Freeman, for the Defendant Grant

D. Dirstine and D. Parry for the Defendant Kawano

HEARD: October 26, 2017

Ruling on Application for Directed Verdict

mcwatt j.

1Alton Grant and Shaquan Kawano are charged with the First Degree Murder of Rala Fedrick on July 6, 2014. At the close of the Crown’s case, both parties brought directed verdict applications. I dismissed those applications on Friday, October 27, 2017. These are the reasons why.

2The Crown’s theory of the case is that Mr. Kawano felt disrespected by the deceased the afternoon before the homicide. He obtained the help of his friend, Mr. Grant, who lured or located the deceased to or at a part of George Street outside the view of security cameras on that street. Mr. Kawano covered his face and head and worked with Mr. Grant to position the deceased and shot him in the back at about 1:50 am on the night in question. They then ran into a gated laneway to an apartment that Mr. Kawano had never been before, but which he slept at that night. The apartment belonged to Ms. Sherry Crocker who was a friend of Mr. Grant.

3The Crown led evidence of the motive for the killing. Two witnesses testified that Mr. Kawano, the deceased, Rala Fedrick, and Mr. Kawano’s girlfriend, Jayway (Tasha Simpson) got into an argument on the street when Mr. Fedrick, in a greeting, hugged Jayway and put his hands on her behind. Mr. Kawano saw this and began to yell at both his girlfriend and the deceased. He yelled to his girlfriend, “you’re hugging a fucking crack head”. Mr. Fedrick was addicted to crack cocaine and other drugs. Jayway tried to calm Mr. Kawano down telling him not to get angry - that she and Rala Fedrick were just friends, but Mr. Kawano stomped off. Monia Carigioli saw the exchange and the inappropriate hug and advised her friend, Rala, to apologize to Mr. Kawano. She believed that he did apologise.

4The Crown called the following evidence at trial:

5According to phone records for the seized Blackberry phone from Mr. Kawano’s residence and a Samsung cell phone seized by police upon Mr. Grant’s arrest, Mr. Kawano called Mr. Grant on 32 occasions on July 5, 2014 and 7 times commencing at around midnight to 1:42am on July 6, 2014. This last call was less than 10 minutes before the murder, which took place at 1:50 am. It was also more calls than was seen in phone records for days before the shooting and was unusual between the two men for that period. This evidence, the Crown submits, is the two men planning the shooting.

6Two cameras on the laneway between Jarvis street on the west and George Street on the east show Mr. Grant running west towards Jarvis Street from George St. at 1:34 am on July 6 after a call from the cell phone that was seized from Mr. Kawano after the murder. The clothing that Mr. Grant was wearing that night on the video surveillance is evidence that it was he who was in that laneway running westbound to meet Mr. Kawano, who he then accompanies eastbound in the laneway back to George St. The Crown alleges, and the defence has conceded on this motion, that it was Mr. Kawano (with his head and face covered) who walks back to George St. with Mr. Grant. Pants similar to the head covering worn by Mr. Kawano were seized in the accused’s apartment just after the homicide. The Crown alleges that the two accused then begin to further prepare for the murder. The shooting takes place less than 20 minutes later just north of the laneway at 305 George St.

7At 1:36:23 am, Mr. Kawano can be identified on the street video surveillance walking, still with his head covered, slowly north on George St. to just before “Centre Island” at Seaton house where Mr. Fedrick was located at the time. Mr. Kawano then hesitates as he appeared to be looking for someone in the area where the deceased eventually emerges from - near the front doors of the residence. The accused turns around and walks away.

8At 1:36:32, Rala Fedrick can be seen on the video surveillance walking towards George St. from the front of the Seaton House front doors. The Crown contends that Mr. Kawano is looking for Mr. Fedrick and turned back down the street so as not to be seen by the victim.

9At 1:37:24 am, Alton Grant is captured on the video surveillance walking north on George St. He looks in the direction of Mr. Fedrick who is in front of Seaton House. The Crown asserts that Mr. Grant is, in fact, looking for Rala Fedrick to move him down the street for the shooting. From 1:37:27 to approximately 1:38 am, Mr. Grant is seen just north of Seaton House on the sidewalk interacting with others.

10At about 1:38:03 am, Mr. Grant is seen walking on the video surveillance south on George St. and is close to Rala Fedrick on the east sidewalk. The Crown alleges that there is an interaction between the two men – depicted by each raising their arms. Then, Mr. Grant and Mr. Fedrick walk 8-10 steps before Rala Fedrick goes to the right into the middle of George St. Mr. Grant walks in sync with the deceased, but they split from each other until Mr. Fedrick moves back east from the middle of the road. The Crown submits that at 1:38:03, Mr. Grant’s right arm goes up and Rala Fedrick begins to follow him. The last observations of Rala Fedrick with Mr. Grant walking south on George St. is 12 minutes before the shooting.

11Just before that, at 1:40:07, Mr. Grant calls Mr. Kawano, which is within two minutes of his walking down the street with Rala Fedrick. The call lasted 6 seconds and went from the Samsung (Mr. Grant) to the Blackberry (Mr. Kawano). Both phones used the same cell tower on Mutual St., which the Crown maintains shows the two accused were close to each other in the area around the murder. The Crown alleges that Mr. Grant then made a second call to Mr. Kawano at 1:42:16 that lasted only 3 seconds, using the same cell tower on Mutual Street. Up until these 2 calls from Mr. Grant to Mr. Kawano, there is evidence that all previous calls between the two accused leading up to the murder had been Mr. Kawano calling Mr. Grant.

12The Crown submits that an inference can be drawn from this evidence that Mr. Grant is luring Mr. Fedrick to a location or locating his position where Mr. Kawano can shoot him and where there are no cameras. He is letting Mr. Kawano know that Mr. Fedrick is in place for Mr. Kawano to commit murder. At 1:46: 27, there is evidence that Mr. Kawano is walking north on George St. His head is covered as it was in the laneway earlier. The Crown suggests that an inference can be drawn that Mr. Kawano knew Mr. Fedrick’s location as a result of the calls from Mr. Grant a few minutes earlier, but is now checking who else is around the area before he shoots the victim.

13Ms. Sherece Brown-Love testified that a man with square framed glasses was pacing around Seaton House with his head covered. Mr. Kawano has been identified by clothing and photographs to wear square framed glasses. Mr. Kawano does a look and a walk up and down George St., going to the front entrance of Seaton House, a little north it, then south down George St. for about a minute and a half starting around 1:46:27 to 1:48:29. He is then seen by the West\O’Neil street camera approaching the location of the shooting outside 305 George St.

14Mr. Kawano is seen headed to the middle of the roadway just before the murder. Mr. Fedrick is on the curb near the edge of the street. The murder takes place less than 2 minutes later. According to the agreed facts, Mr. Kawano is shot by “the bullet travelling through his body in a path from back to front, left to right and downward, passing through his left lung and the right lobe of his liver. The bullet exited Mr. Fedrick’s body on the right side of his lower chest. The bullet then struck Robert Robinson in the lower left forearm, fracturing a bone”.

15Sule McClymont testified that he was on the George St. with the deceased, Trevor Clark and Robert Robinson. There was no arguing or yelling before the shooting and no one approached where he was standing in or around Rala. Mr. Robinson also said that no one else was around where he was standing in a group of people with the deceased. He did see the person with his face covered about 20 minutes before the shooting. When the shooting took place, he heard a pop that he thought was a fire cracker, but not from in front of himself. He saw the person whose head was covered by a scarf running after the shot. That person had been about 10 to 15 ft. away. He was mulatto or white and he had seen the person wearing glasses. Mr. Kawano is a fair skinned malato man. The man ran south. The evidence is that the laneway to Jarvis St. is south of the location of the shooting. David Kamkin testified that his attention was drawn to a guy across the road who was pacing. The person approached diagonally toward them, turned sharply towards Rala and there was a loud bang. Mr. Kamkin saw a blue flash from the area of the person’s pocket. The man ran across the street. A second person on the sidewalk followed the shooter. A person opened the gate to Jarvis St. and they headed west once through the gate. Trevor Clark testified that Rala Fedrick was north of where he had been standing before the shooting. He confirmed that Mr. Robinson was also there. He also thought that a fire cracker had gone off. It came from north of where he was standing. He saw smoke and a man sprinting south to the laneway. Other persons were running and ducking, but the man who sprinted down the laneway was not ducking and was running faster than others who were running. He did not see anyone else running with this man. Mr. McDermott testified that he, too, thought the bang he heard was a fire cracker. He saw two men run to the laneway to Jarvis St. Mr. Clark went behind them.

16After the shooting, at 1:50:22 am, Mr. Kawano is seen on the laneway video cameras running west from George St. towards Jarvis Street. Mr. Grant is running behind him a few steps one second later. Both are sprinting quickly. The clothing and previous sightings of the two accused on George St. prior to this video is evidence that the two men were Mr. Kawano and Mr. Grant.

17The two accused are next videotaped on and elevator video at 150 Elizabeth St. at Sherry Crocker’s apartment at 2:04 am. - less than 15 minutes after the shooting. Ms. Crocker had never met Mr. Kawano before, although she had seen him on George St. Mr. Grant had called her earlier to ask if he could bring a friend over that night. The Crown maintains that it is because the two committed the murder together and had planned their escape to 150 Elizabeth St. in order to hide until the situation had quieted down. Mr. Kawano met Ms. Crocker and slept at the apartment that night for the first time.

18In the elevator, Mr. Kawano is wearing a knapsack that is depicted the next day being carried by Sherry Crocker in the elevator at Elizabeth St. The Crown maintains that Mr. Kawano has her carry the back pack so that he is not seen on camera with it.

19Sign-in records for Ms. Crocker’s apartment were made exhibits in the trial and depicted the time of 2:04 “pm”, while the times before and after the two accused are alleged to have entered the building, are logged as “am”. The names on the loge were not those of the two accused, who were seen on the elevator at the same time. The inference being that they lied about their names and tried to confuse the fact that they were there in the afternoon and not just after the murder.

20The Crown submits that all of this evidence is strong circumstantial evidence that it was Mr. Kawano, disguised before the shooting and who had the motive to kill, who was the person who caused the death of Rala Fedrick; and that Mr. Grant was a party to the offence. He was Mr. Kawano’s good friend. He had the intent to help Mr. Kawano. He went to George St. that night to interact with Mr. Fedrick. He helped Mr. Kawano commit the offence.

The Issues and The Law

21This is a circumstantial case. Mr. Kawano submits that there is no direct evidence of who shot Mr. Fedrick and the issue cannot be determined on the evidence in this case without the triers of fact speculating. Second, there is no evidence of planning and deliberation without speculation on the part of the triers of fact as well. Mr. Grant submits that the tie between him and Mr. Kawano is too tenuous and invites speculation on the part of the jury for a finding that he was a party to the murder.

22The test, in these circumstances, is one used at the Preliminary Inquiry where the Crown seeks a committal on the basis of circumstantial evidence. McLachlin C.J.C., in R. v. Arcuri (2001)2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.), explained the following at pp. 31-32:

The question then becomes 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.

23The parties submit that there are competing inferences that can be drawn from the evidence led by the Crown. Those will be left for the jury to resolve (Arcuri, at p31-32). For the purpose of this application, as is the test for committal after a Preliminary Inquiry, where I find that “more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered” (R. v. Sazant, 2004 SCC 77, [2004] S.C. J. no. 74 (S.C.C) at para. 18. If a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it” (Arcuri, at p. 31-32). So too must I in this application.

24I find that the Crown’s case is a strong circumstantial case. It contains sufficient evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.

25The evidence of the phone calls on the night of the murder is evidence of a planned and deliberate murder. In fact, evidence that the shooting was planned and deliberate is laid out throughout the commission of the murder. That Mr. Kawano is the shooter is supported by clothing he wore and the identification of Mr. Kawano on the video surveillance on George St. before the murder. That he is the shooter is also in the following evidence: the relative location of the two accused to each other in the area of the murder at relevant times, contained on the cell phone tower records; the movements of the two accused in relation to Mr. Fedrick prior to the shooting; Mr. Kawano’s disguise, worn on George St. up to and after the shooting; the movements of the two accused, captured on the surveillance footage, in relation to the time of the shooting and the evidence that there was no one else around the victim, but his friends and the two accused; that Mr. Kawano had never met Ms. Crocker before; the misleading sign-in records in the form of “p.m.” as opposed to the “a.m.” time Mr. Kawano and Mr. Grant were actually at Ms. Crocker’s apartment; and the fact that Mr. Grant, arranged in advance of the killing, for Mr. Kawano to go to Ms. Crocker’s apartment afterwards.

26On the basis of that evidence, the applications are dismissed.

McWatt J.

Released: November 06, 2017

CITATION: R. v. Grant and Kawano, 2017 ONSC 6661

COURT FILE NO.: 7-54215

DATE: 20171106

ONTARIO

SUPERIOR COURT OF JUSTICE