R. v. Dirie, 2017 ONSC 7267
CITATION: R. v. Dirie, 2017 ONSC 7267
COURT FILE NO.: CR-17-10000104-00M0
DATE: 20171205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
MOHAMUD DIRIE and AYUB ALI
Respondents
T. Kranjc and J. Capozzi, for the Applicant
M. Wyszomierska, for the Respondent Dirie
A.M. Morphew, for the Respondent Ali
HEARD: November 14, 2017
RULING ON CERTIORARI APPLICATION
SCHRECK J.
[1] Mohamud Dirie and Ayub Ali were charged with first degree murder. Following a preliminary inquiry before Khawly J., both were discharged on the first degree murder charges. Mr. Dirie was committed on a charge of second degree murder and Mr. Ali on a charge of accessory after the fact. The Crown applies for certiorari with mandamus in aid reviewing that decision.
[2] There was evidence at the preliminary inquiry that on a night in August 2015, the deceased, Kabil Abdulkhadir, went to a nightclub where he encountered Mr. Dirie, who had a history of animosity towards him. Mr. Abdulkhadir later left the nightclub. He planned to go to the Marriott Hotel, a plan he shared with others, including an individual who knew Mr. Dirie. Mr. Dirie and his friend, Mr. Ali, left the club immediately after Mr. Abdulkhadir and went to the Marriott, arriving there before him. They drove out of sight into a nearby parkade, turned around, and then left the parkade just after Mr. Abdulkhadir arrived. They travelled away from the area of the hotel, turned around, and drove back and stopped behind Mr. Abdulkhadir, who was standing behind his car. Mr. Dirie got out of the car armed with a loaded handgun, which he used to shoot Mr. Abdulkhadir several times at short range. He then returned to the car and he and Mr. Ali sped away. Mr. Abdulkhadir died of his injuries.
[3] The preliminary inquiry judge was of the view that although there was evidence that Mr. Dirie shot the deceased and that Mr. Ali drove him to the scene, there was no evidence that the murder was planned and deliberate or that Mr. Ali was aware that it was going to happen. The Crown submits that in coming to this conclusion, Khawly J. committed jurisdictional error. The respondents submit that any error that was made was simply an error as to the sufficiency of the evidence and not reviewable.
[4] The following reasons explain why I would grant the application and remit the matter to the preliminary inquiry judge with a direction to commit both respondents for trial on charges of first degree murder.
I. EVIDENCE
A. Attendance at the Nightclub
[5] In the early morning hours of August 9, 2015, Mr. Dirie and Mr. Ali drove to the Barcode nightclub at 11 Polson Street in Toronto in a blue Hyundai Elantra. This vehicle had been rented by another individual, Abdullahi Alifarah, in July and then loaned to Mr. Ali. In early August, Mr. Alifarah had made numerous unsuccessful attempts to contact Mr. Ali in order to have the car returned.
[6] The deceased also attended the Barcode, arriving sometime after Mr. Dirie and Mr. Ali. The preliminary hearing judge admitted for their truth various statements that had been made by the deceased which, if accepted by the trier of fact, showed that there was a longstanding history of animosity between him and Mr. Dirie. There was evidence that the deceased feared Mr. Dirie and had been assaulted by him in the past. About two months prior to the alleged offence, Mr. Dirie’s brother had been murdered and there was evidence suggesting that Mr. Dirie blamed the deceased.
[7] Koos Abshir, who knew Mr. Dirie, Mr. Ali and the deceased, was at the club that evening and at separate times during the night spoke to both Mr. Ali and the deceased. The deceased told her that he had approached Mr. Dirie to offer condolences on the death of his brother and to “let bygones be bygones”. Mr. Dirie had responded by shoving him and saying “Whatever, I don’t give two shits”.
B. The Deceased’s and the Respondents’ Departure From the Nightclub
[8] The deceased told Ms. Abshir that he would meet her at the Marriott Hotel later that night and to text him when she got there. He offered to have her driven there in a white limousine that was parked outside the Barcode, although he himself did not intend to travel in the limousine. The deceased walked Ms. Abshir to the limousine and then walked towards the parking lot. According to security camera surveillance, as the deceased walked towards the parking lot, Mr. Ali entered the Hyundai Elantra, which was parked in the parking lot. The Hyundai’s headlights were turned on just as the deceased entered his own vehicle.
[9] About two minutes after the deceased left the club, Mr. Dirie also left. After making a telephone call, he walked to the Hyundai and got into the passenger seat. As he did so, the deceased pulled out of his parking spot, stopped and appeared to speak to an individual standing nearby. The deceased then drove out of the parking lot. As he did so, the Hyundai also began moving. However, Mr. Ali did not travel directly to the parking lot exit. Instead, he pulled to the right, stopped beside a parked car and turned off the headlights. A short while later, he turned the lights back on and then exited the parking lot behind a truck that was heading in the same direction. The security camera showed the deceased driving out of the lot, followed by the truck and then the Hyundai.
[10] Cell tower records suggested that Mr. Dirie then travelled northeast towards a cell tower located at 330 Bay Street, near the Marriott Hotel. During this period, Mr. Dirie had numerous communications with Ebada Korshel, who is his co-tenant. The cell tower records suggested that Ms. Korshel was also moving towards 330 Bay Street.
C. The Respondents’ and the Deceased’s Arrival at the Marriott Hotel
[11] At 2:37:46 a.m., security video at the Marriott Hotel located at 525 Bay Street showed the Hyundai Elantra turning into the hotel driveway from Bay Street, going through a roundabout in front of the hotel, and then exiting the driveway and proceeding north on Bay Street. At 2:38:37 a.m., the Hyundai turned right into the Eaton Centre parkade just north of the Marriott. About 10 seconds later, the white limousine carrying Ms. Abshir stopped on Bay Street across from the Marriott.
[12] At 2:38:55 a.m., the Hyundai turned around inside the Eaton Centre parkade. At 2:39:12 a.m., the deceased’s car, together with a Chrysler 300, arrived in the southbound lane of Bay Street and stopped across from the entrance to the parkade. About 30 seconds later, the Hyundai left the parkade and turned right on Bay Street, travelling northbound and away from the Marriott.
D. The Shooting
[13] At 2:42:17 a.m., the deceased got out of his car and walked behind it, where the trunk was open. Another car, which a trier of fact could infer was the Hyundai, pulled up behind it. Somebody got out of the passenger seat, raised a pistol and shot the deceased several times. He died as a result of the gunshot wounds.
[14] At 2:42:43 a.m., the deceased’s vehicle and the Chrysler sped away, travelling southbound. It is not clear who was driving the deceased’s vehicle. Six seconds later, the Hyundai also sped away in the same direction. As it did so, an individual ran onto Bay Street from the area of the Marriott Hotel and began shooting a gun at the Hyundai.
E. The Discarding of the Respondents’ Vehicle
[15] At about 4:00 a.m., Mr. Aliharah, who had loaned the Hyundai to Mr. Ali, received a call advising him that he could pick the car up at a specified location. He was told that the car had no gasoline in it. Mr. Aliharah filled a gasoline can at a gas station and then went to where the car was, only to find that it was not actually out of gasoline.
II. THE PRELIMINARY INQUIRY JUDGE’S REASONS
[16] The preliminary inquiry judge was satisfied that it was open to a reasonable trier of fact to conclude that Mr. Dirie was the person who shot the deceased and that Mr. Ali drove the car to the location of the shooting and then drove it away afterwards. While the preliminary inquiry judge was satisfied that there was sufficient evidence of identity, he made it clear in his reasons that he was unimpressed with the strength of the Crown’s case.
[17] He came to a different conclusion with respect to the sufficiency of the evidence of planning and deliberation (at pp. 22-24):
“Opportunity to create a plan is insufficient to satisfy the requirement of planning. Nor is “willfulness” to do the act of killing the same as “deliberation”.
Similarly, while evidence of animus can lead to motive which in turn can serve to prove intent, that does not give it a direct line to planning and deliberation. There must some clear evidence of both once the intent is formed.
The Crown nonetheless claims to have ample evidence of just that. The narrative is as follows:
• The scheme is hatched at the club. All actions by Dirie and Ali from that point confirm the implementation of the scheme.
• The victim is discreetly followed from the club.
• He is then preceded to his known destination, namely the Marriott Hotel.
• The area is then cased by the act of driving through the hotel courtyard before heading slightly north to a parkade.
• They then move to a discrete location, namely the said parkade to await the victim’s arrival.
• They then make a feint to move away in the opposite direction when he does arrive.
• This removes the possibility of any concern by the victim.
• They then double back and catch him when he is void of any suspicion and defenceless.
No question that if we had any evidence of that, it would amount to overwhelming confirmation of planning and deliberation.
Unfortunately, the Crown’s appreciation of the evidence, while an interesting narrative and worthy of a Dashiell Hammett novel, is wholly speculative. Rather, the bits of evidence that can be pieced together, if at all, do not confirm this narrative.
The Crown’s strongest point is the Elantra driving through the Marriott, but that alone does not show planning unless accompanied by additional supporting evidence.
Had they laid in wait at the parkade, as the Crown earnestly suggested, then I agree that, taking the Crown’s case at its highest, it could have met the threshold of planning and deliberation. That evidence is missing.
In short, evidence of murder in the first degree is simply non-existent.
[18] With respect to Mr. Ali, the preliminary inquiry judge noted that there was no evidence of any animus towards the deceased on his part, nor was there evidence that he had been present when Mr. Dirie and the deceased had spoken at the nightclub. As a result, the preliminary inquiry judge concluded that there was no evidence that Mr. Ali was aware that Mr. Dirie was going to shoot the deceased or did anything to aid or abet him in that regard.
III. ANALYSIS
A. Overview – Governing Legal Principles
[19] As I indicated to counsel during the hearing of the application, I do not agree with the preliminary inquiry judge that there was insufficient evidence of planning and deliberation to commit Mr. Dirie on a charge of first degree murder or that there was insufficient evidence of aiding and abetting on the part of Mr. Ali to commit him on that charge. Had I been the preliminary inquiry judge, I would have committed both of them on first degree murder. However, whether I agree with the preliminary inquiry judge’s conclusions is not the issue.
[20] In cases involving circumstantial evidence, a preliminary inquiry judge is required to engage in a limited weighing of the evidence in that he or she must determine whether the guilt of the accused is a reasonable inference that could be drawn from the evidence: R. v. Arcuri, 2001 SCC 54, at paras. 29-30. However, it has been recognized that “the boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a difficult one to determine”: Hon. D. Watt, Watt’s Manual of Criminal Evidence, (Toronto: Thompson Reuters Canada, 2017) at §12.01; R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 86 O.R. (3d) 134 (S.C.J.).
[21] It is well established that a reviewing court is not entitled to simply substitute its opinion as to the sufficiency of evidence for that of the preliminary inquiry judge. This was made clear in R. v. Deschamplain, 2004 SCC 76, at para. 23:
… [I]t is not a jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b): see Arcuri, supra, at paras. 21-23; Russell, [2001 SCC 53] at para. 26. In that situation, it would be improper for a reviewing court to intervene merely because the preliminary inquiry judge’s conclusion on sufficiency differs from that which the reviewing court would have reached: see Russell, supra, at para. 19. It is a jurisdictional error, however, for a preliminary inquiry judge to act arbitrarily: Dubois, [1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366] at p. 377.
[22] However, where a preliminary inquiry judge fails to consider the whole of the evidence or determines issues reserved for the trier of fact, he or she acts in excess of his or her jurisdiction and the decision is therefore reviewable on an application for certiorari: Deschamplain, at paras. 18-19; R. v. Sazant, 2004 SCC 77 at para. 18.
[23] Based on the foregoing, if the preliminary inquiry judge merely determined that the boundary between permissible inference and impermissible speculation was at a different location than I would have determined it to be, then I must defer to his decision. On the other hand, if he chose between competing inferences, failed to consider the whole of the evidence or otherwise acted arbitrarily, then his decision must be set aside.
B. No Evidence as Opposed to Insufficient Evidence
[24] While decisions as to sufficiency are to be deferred to, the jurisprudence suggests that where a preliminary inquiry judge wrongly concludes that there is no evidence of an essential element, as opposed to insufficient evidence, he or she has committed jurisdictional error. The distinction was explained by Dambrot J. in R. v. Bryce, 2015 ONSC 7004, aff’d 2016 ONCA 513, at paras. 29-31:
But in this case, as I read his decision, the preliminary inquiry judge concluded that there was no evidence before him upon which a reasonable jury properly instructed could return a verdict of guilty rather than merely insufficient evidence. The distinction is admittedly a fine one, but it finds support in the case law.
As a result, where the preliminary inquiry judge wrongly concludes that there is no evidence of an element of the offence charged, or no evidence upon which the accused can be ordered to stand trial, as contrasted with insufficient evidence, the error is jurisdictional. This is made clear in the judgment of the Supreme Court of Canada in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 24, where the Court stated:
While this Court held in Russell, supra, at para. 48, that “a preliminary inquiry judge’s determination of sufficiency is entitled to the greatest deference”, I do not think the issue here has anything to do with “sufficiency”. The preliminary inquiry judge flatly stated, “I find that there is absolutely no evidence of non-consent, in either words or actions.”
That is this case. In this case, as I have noted, the judge said, “I cannot say that the Crown’s theory is supported by the evidence, even if taken at its highest. Without evidence, the conclusion that the Crown wishes me to reach is merely speculation.” In my view, this is not a conclusion that the evidence is insufficient. This is a conclusion that the Crown adduced no evidence that supports the charge against the accused. If there is any doubt about the meaning of this statement, I turn to what the judge said shortly after: “In other words, there is no evidence from which a reasonable inference can be drawn to support the Crown’s theory” (emphasis added). [Emphasis in original].
[25] In this case, after reviewing the “narrative” of the Crown’s theory, the preliminary inquiry judge stated (at p. 23):
No question that if we had any evidence of that, it would amount to overwhelming confirmation of planning and deliberation. [Emphasis added].
[26] Later in his reasons, the preliminary inquiry judge stated (at p. 24):
Had they then laid in wait at the parkade, as the Crown earnestly suggested, then I agree that, taking the Crown’s case at its highest, it could have met the threshold of planning and deliberation. That evidence is missing. [Emphasis added].
[27] Finally, in concluding his reasons on the issue of planning and deliberation, the preliminary inquiry judge said (at p. 25): “In short, evidence of murder in the first degree is simply non-existent”. These references clearly indicate that the preliminary inquiry judge did not simply conclude that there was insufficient evidence of planning and deliberation. He concluded that there was no evidence.
[28] The evidence which the preliminary inquiry judge accepted as being sufficient to establish identity showed that the respondents travelled together to the Marriott Hotel, where the deceased planned to be. They drove through the hotel courtyard and from there into the parkade, where they would not have been visible. They left the parkade immediately after the deceased arrived, drove north, turned around, and drove up behind the deceased. Mr. Dirie then got out of his vehicle holding a loaded firearm, which he immediately discharged at the deceased at close range. In these circumstances, whatever view one may have of the sufficiency of the evidence, it cannot be said that there was no evidence.
[29] In Sazant, the preliminary inquiry judge had discharged the accused on a sexual assault charge because he found that there was no evidence of a lack of consent, despite the complainant having testified that he had not consented. Writing for a majority of the Court, Major J. concluded that there were three possible interpretations of what the preliminary inquiry judge had done, all of which would result in a loss of jurisdiction: (1) he may have misunderstood the elements of the offence and thereby failed to test the Crown’s evidence against those elements; (2) he may have chosen between competing inferences; and (3) he may have failed to consider the whole of the evidence (at para. 25). In this case, the preliminary inquiry judge was clearly aware of the legal requirements for an inference of planning and deliberation. As a result, his conclusion must be the result of either choosing between competing inferences or a failure to consider the whole of the evidence.
[30] As noted, there was evidence that Mr. Dirie got out of his car with a loaded handgun that was ready to be fired and then immediately shot the deceased at close range. This alone constitutes some evidence of planning and deliberation: R. v. McPherson, 2014 ONCA 223, at para. 29; R. v. Mac, 2009 ONCJ 771, at paras. 132-133.
[31] To be clear, I am not substituting my view of the sufficiency of the evidence for that of the preliminary inquiry judge. That said, this was not, in my view, a close case. There was ample evidence which, if accepted, could reasonably give rise to an inference of planning and deliberation. The fact that the preliminary inquiry judge nonetheless concluded that there was no evidence suggests that the error he committed was jurisdictional. In my view, where a preliminary inquiry judge’s conclusion is clearly unreasonable, this fact can be evidence that he or she made a jurisdictional error. Put another way, in a close case, where the reviewing court disagrees with the preliminary inquiry judge, this fact alone cannot justify interference with the decision. However, a conclusion that is clearly unreasonable can be an indication that there was more than simply an error as to the sufficiency of the evidence and that the preliminary inquiry judge exceeded his or her jurisdiction. This is such a case.
C. The Respondent Ali
[32] The preliminary inquiry judge’s conclusion with respect to Mr. Ali was premised on his conclusion that there was no evidence of planning and deliberation. If the murder of the deceased was an impulsive and unplanned killing, then it may follow that there was no evidence that Mr. Ali, who had no history of animus against the deceased, was a party. However, if there was evidence of planning and deliberation, then it would follow that there was some evidence that Mr. Ali, who drove the Hyundai, was involved in the plan. As a result, I conclude that the preliminary inquiry judge’s conclusion that there was no evidence that Mr. Ali was a party to the murder was tainted by his jurisdictional error respecting the evidence of planning and deliberation.
D. Remedy
[33] The respondents submit that if I conclude that there was jurisdictional error, I ought to grant the application for certiorari but not the application for mandamus compelling the preliminary inquiry judge to commit both respondents on charges of first degree murder. Rather, I should remit the matter to the preliminary inquiry judge to hear submissions on whether committal on some lesser charge is appropriate. I accept that this would be the appropriate remedy if committal on charges of first degree murder were not legally inevitable: R. v. S.K., 2014 ONCA 138 at para. 4. However, in my view a consideration of all of the evidence makes committal on charges of first degree murder legally inevitable.
IV. DISPOSITION
[34] The discharges of both respondents on charges of first degree murder are quashed. The matter is to be remitted to the preliminary inquiry judge, who is to commit both respondents for trial on charges of first degree murder.
[35] I wish to thank all counsel for their well-prepared, concise and helpful written and oral submissions.
Justice P.A. Schreck
Released: December 5, 2017
CITATION: R. v. Dirie, 2017 ONSC 7267
COURT FILE NO.: CR-17-10000104-00M0
DATE: 20171205
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOHAMUD DIRIE and AYUB ALI
RULING ON CERTIORARI APPLICATION
P.A. Schreck J.
Released: December 5, 2017