Her Majesty the Queen v. Derek Oppong

COURT FILE NO.: CR-17-70000208-00MO

DATE: 20180611

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

DEREK OPPONG Respondent

COUNSEL: B. Glendinning and E. Jackson, for the Applicant D. Derstine, for the Respondent

HEARD: February 23, 2018

RULING ON CERTIORARI APPLICATION

SCHRECK J.:

[1] In the early morning hours of November 16, 2014, Dennis Green and Tariq Mohammed were with a group of friends in a crowded restaurant in downtown Toronto when a group of six men entered. By the time that group left nine minutes later, Mr. Green had been robbed at gun point and Mr. Mohammed had been fatally shot.

[2] Derek Oppong was one of the six men. He did not participate in the robbery. While Mr. Green was being robbed at the back of the restaurant, Mr. Oppong was waiting at the front for food he had ordered. Nor did Mr. Oppong shoot Mr. Mohammed. At the time Mr. Mohammed was shot, Mr. Oppong was on his way out of the restaurant. Mr. Oppong did, however, briefly push Mr. Green against a counter and punch him at the front of the restaurant after the robbery and before the shooting.

[3] Despite not participating in either the robbery or the murder, Mr. Oppong was charged with first degree murder. He was also charged with forcible confinement and assault on the basis that he had pushed Mr. Green against the counter and punched him. He also faced two counts of aggravated assault in relation to injuries two of Mr. Green’s friends suffered after another member of the group shot at Mr. Green and hit them instead.

[4] Following a lengthy preliminary inquiry in the Ontario Court of Justice before Rutherford J., Mr. Oppong was committed for trial on forcible confinement, assault and aggravated assault and discharged on first degree murder. The Crown submits that in discharging Mr. Oppong on the murder count, the preliminary inquiry judge committed jurisdictional error. It has accordingly brought an application for certiorari with mandamus in aid seeking to have the discharges set aside and the matter remitted to the preliminary inquiry judge with a direction to commit Mr. Oppong for trial on charges of first degree murder and robbery. At the root of the Crown’s argument is a submission that the robbery, the forcible confinement, and the murder were all part of a single transaction.

[5] For the reasons that follow, the application is dismissed. In my view, not only were the preliminary judge’s conclusions not marked by jurisdictional error, they were was manifestly correct.

I. EVIDENCE

A. The Events Preceding the Robbery

[6] The events in question took place in the early morning hours of November 16, 2014 at the Garden Restaurant on Dundas Street West in Toronto.[^1] Dennis Green, Tariq Mohammed and some of their friends were seated at a table in the restaurant prior to the events in question.

[7] At around 3:47 a.m., a group of seven people entered the restaurant. For the purposes of the preliminary inquiry, it was not in dispute that they were the respondent, Thanushia Mariathas (the only woman in the group), Havard McKenzie, Clifton Vassel, Abdirisak Ibrahim and two men whose identities are unknown (“UK#1” and “UK#2”).

[8] Upon arriving at 3:47, the respondent stopped at the front counter and is seen on the video speaking to a waiter. There does not appear to be any issue that he was ordering food. The group then walked to the washroom area at the back of the restaurant. At 3:48:03, the respondent entered the washroom and then exited three seconds later. He re-entered the washroom at 3:48:16 together with other members of the group. At 3:49:33, he exited the washroom and walked towards the front of the restaurant. The rest of the group remained in the area of the washroom.

[9] After attending at the front counter, the respondent returned to the washroom area at 3:50:07. As he walked there, his head was turned to the left. The table where Mr. Green and Mr. Mohammed were seated was to the left of the area where the respondent walked.

[10] At 3:50:18, the respondent entered the washroom with Mr. McKenzie, Mr. Ibrahim and UK#2. At 3:51:33, he left the washroom together with Mr. McKenzie, Mr. Vassel and UK#1. About seven seconds later, he began walking towards the front of the restaurant. The other men remained in the washroom area.

[11] The respondent passed the front counter and exited the restaurant at 3:52:00. After looking up and down the street, he re-entered the restaurant at 3:52:14. From there, he went to the front counter and remained there, together with UK#1 and UK#2. A waiter brought him food in a bag, which he paid for.

B. The Robbery

[12] While the respondent, UK#1 and UK#2 were at the front of the restaurant, Mr. Green and Mr. Mohammed went to the washroom. Mr. Green testified that he had asked Mr. Mohammed to come with him because he was wearing three large gold chains, two rings and a watch. As he approached the washroom, he noticed Mr. McKenzie, Mr. Vassel and Mr. Ibrahim. He said “Heads up” to Mr. Mohammed to alert him to their presence and then stopped before entering the washroom because he was worried about being trapped inside.

[13] At 3:54:34, Mr. Green and Mr. Mohammed were set upon by Mr. McKenzie, Mr. Vassel and Mr. Ibrahim. Mr. Green recalled two of them saying “Take his watch and take his rings.” During the struggle, Mr. McKenzie removed a handgun from his pocket and put it to Mr. Green’s head. Mr. Green and Mr. Mohammed attempted to break free, but were restrained by Mr. McKenzie and Mr. Vassel. Mr. Mohammed attempted to get between Mr. McKenzie and Mr. Green, but Mr. McKenzie struck him on the head with the gun. The robbers managed to take two of Mr. Green’s gold chains, but were unsuccessful in obtaining the third one.

[14] Mr. Green and Mr. Mohammed managed to break free and leave the bathroom area at 3:55:02. The entire robbery lasted approximately 28 seconds. The respondent remained at the front of the restaurant throughout that time.

[15] At 3:55:11, Mr. McKenzie put the gun into his pants. He and Mr. Ibrahim then fought over the chains that had been taken from Mr. Green. At 3:55:22, Mr. McKenzie began to walk towards the front of the restaurant and encountered Mr. Green on the way. Mr. Green testified that he had returned to the washroom to see where Mr. Mohammed was. Mr. Green had no recollection of what occurred afterwards, but on the video it appears as if he and Mr. McKenzie had a verbal confrontation as they walked towards the front of the restaurant. At one point, Mr. McKenzie adjusted something at the front of his body where he had placed the gun. They passed UK#1 and Mr. McKenzie is seen on the video saying something to him or Mr. Green while gesturing at Mr. Green.

C. The Altercation Between the Respondent and Mr. Green

[16] At 3:55:19, the respondent began walking towards the washroom area, but then stopped and spoke to UK#1. As he did so, he turned and looked over his shoulder in the direction of Mr. Green and Mr. Mohammed, who were by then walking towards the front counter.

[17] At 3:55:42, Mr. McKenzie, who was at the front counter, began to walk towards the exit to the restaurant. At 3:55:45, the respondent put his right hand on Mr. Green’s right shoulder, pushed him against the front counter and punched him once.

D. The Shot Fired by UK#1 at Mr. Green

[18] A few seconds after being pushed, Mr. Green managed to move away from the respondent, at which point UK#1 produced a gun and shot at him. The shot missed and hit two of Mr. Green’s companions, Amanda Flint and Amy Turner.

E. The Murder

[19] At 3:55:48, Mr. Mohammed is seen coming into view on the video directly above the front counter and beginning to fall. At 3:55:50, he was completely on the ground and UK#1 fired a shot at him and then another at 3:55:52. At 3:55:53, Mr. McKenzie passed through the outer doors on his way back into the restaurant and then the inner doors a second later, at 3:55:54. He was fully in the restaurant at 3:55:55. The respondent’s exact location during this time is unclear, but it could be inferred that he was nearby and moving towards the exit, as he left the restaurant at 3:55:56.

[20] At the same time that the respondent left the restaurant, Mr. McKenzie, who had by then re-entered, passed out of the view of the camera facing the front entrance. At the same time, UK#1’s hand is seen holding a gun and coming into view on the camera over the counter area, near where Mr. Mohammed is still lying on the floor. At 3:55:57, UK#1 stood over Mr. Mohammed, held the gun near to his head and fired. At the same time, Mr. McKenzie’s hand is seen coming into view behind UK#1. At 3:55:58, Mr. McKenzie approached Mr. Mohammed and reached into his pocket. At 3:55:59, he pulled the gun out of his pocket, aimed it directly at Mr. Mohammed and fired directly at him three times at close range. At 3:56:00, Mr. McKenzie moved out of the view of the camera, immediately after UK#1 did so. Beginning at 3:56:01, Mr. McKenzie and the remainder of the group ran out of the restaurant.

II. THE PRELIMINARY INQUIRY

A. Charges, Committals and Discharges

[21] All of the men were charged with first degree murder and armed robbery. The respondent was also charged with forcible confinement, assault and two counts of aggravated assault and Mr. Vassel was charged with assault with a weapon and weapons dangerous. Ms. Mariathas was not charged.

[22] All of the accused except for Mr. McKenzie were discharged on the murder charges. Mr. McKenzie was committed on a charge of first degree murder on the basis of planning and deliberation.[^2] Mr. McKenzie, Mr. Vassel and Mr. Ibrahim all conceded committal on armed robbery. Mr. Vassel was also committed on assault with a weapon and weapons dangerous. The respondent was committed on two counts of aggravated assault on the basis that he was a party to UK#1’s attempt to shoot Mr. Green, which resulted in the injuries to Ms. Flint and Ms. Turner. He was also committed on charges of assault and forcible confinement on the basis that he and UK#1 pushed Mr. Green up against the counter, thereby preventing him from moving.

B. The Reasons of the Preliminary Inquiry Judge

[23] The preliminary inquiry judge correctly instructed herself on the test for committal. She recognized that she was not entitled to choose between competing inferences and that where more than one inference can be drawn from the evidence, only those that favour the Crown are to be considered.

[24] With respect to the Crown’s theory that all four accused had planned to commit a robbery with firearms and resort to murder if necessary, the preliminary inquiry judge concluded as follows:

I do not find that the evidence reasonably supports the inference that the four defendants either before arriving to or while at the Garden Restaurant hatched a sophisticated plan to commit an armed robbery where three men would commit the robbery and three others would, if necessary, finish it off and/or commit murder. There is no logical basis in the evidence to support this inference.

It is possible the defendants planned a robbery when they moved in and out of the men’s washroom. I am cognizant of the fact that a plan does not have to be a good plan. In fact it can be bad plan. However the plan and the creation of a plan must still have a logical foundation in the evidence. The plan suggested by the Crown does not.

[25] With respect to the respondent’s role in the alleged plan to commit a robbery, the preliminary inquiry judge said the following:

The Crown argues that in furtherance of the plan Mr. Oppong, while walking to the washroom, looked to his left in order to scout out victims. I have reviewed the video. Mr. Oppong does indeed look left in the direction of Mr. Green’s table however his head was turned to the left for most of the time that he walked down the aisle. Mr. Oppong would have been able to see most of the tables on the north side of the restaurant. The restaurant was busy. It is not rational to conclude that he targeted Mr. Green or anybody else. Even if Mr. Oppong noticed Mr. Green there is no evidence suggesting that Mr. Green was ever summoned to the washroom by Mr. Oppong or any of the other defendants. There is no evidence that Mr. Green or Mr. Mohammed received a telephone call or text to go to the back of the washroom. It appears to have been chance that Mr. Green decided to go to the washroom.

The fact that Mr. Oppong went outside and briefly looked up and down the street does not lead to the inference that he was acting as a look out. … Mr. Oppong ordered food. He waited for and paid for his food at the front. Taking a brief look up and down a busy street is not indicative of looking out for police. It is more reasonable to infer that the police would not be far away given the location of the restaurant and the fact that it was so busy. To draw an inference that this evidence was part of a plan to commit a robbery is in my view speculative.

[26] With respect to the respondent’s role in the killing of Mr. Mohammed, the preliminary inquiry judge accepted that there was evidence that the respondent forcibly confined Mr. Green and that there was a close connection between the forcible confinement of Mr. Green and the shooting of Mr. Mohammed. However, she was not satisfied that there was any evidence that the respondent played a role in the killing:

Mr. Mohammed was not the focus of the assault or the forcible confinement at the front counter. There is no evidence that could lead a jury to reasonably conclude that Mr. Oppong knew that Mr. Mohammed was part of the interaction between Mr. Green and Mr. McKenzie as they came down the aisle towards the front of the restaurant. Mr. Mohammed was behind Mr. Green. Mr. Oppong was not part of the robbery at the back. Nothing in the evidence supports the inference that Mr. Oppong would have known that Mr. Mohammed was connected to Mr. Green or that he knew that Mr. Mohammed was even at the counter.

As I outlined earlier in my reasons there is an absence of evidence about the relationship between Mr. Oppong and the other defendants and unknown men. Mr. McKenzie and Mr. Green appeared to be loud as they proceeded down the aisle. Seconds later the confrontation at the back took place. It would be pure speculation to infer from all the evidence that Mr. Oppong knew that unknown male one had a loaded gun and was prepared to use it. There is nothing in the evidence that would allow a trier of fact to come to this conclusion. There simply in my view is insufficient evidence to bridge this evidentiary gap.

When unknown male one pulled and fired the gun at Mr. Green both Mr. Green and Mr. Oppong moved away from the counter. Mr. Mohammed fell onto the ground behind the counter. Unknown male shot him twice. Mr. Oppong was not there. It appeared that unknown male one acted on his own. A jury properly instructed could easily find that he is guilty of first degree murder. Mr. Oppong exited the restaurant about 3 seconds after unknown male shot Mr. Mohammed. Given the location of the counter and the front door it is reasonable to infer that it would have taken at least one to two seconds for Mr. Oppong to have reached the door.

When I consider all of this evidence I find there is no evidence upon which a jury properly instructed could reasonably conclude that Mr. Oppong was an essential, integral and substantial part of the killing of Mr. Mohammed. His role in the confinement of Mr. Green was more fleeting and separate from the shooting of Mr. Mohammed.

III. ANALYSIS

A. Overview of Applicable Legal Principles

(i) The Role of the Preliminary Inquiry Judge

[27] The legal principles applicable to this application are not in dispute. Section 548(1) of the Criminal Code required the preliminary inquiry justice to determine if “there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.” It is well established that the sufficiency test is met where there is evidence upon which a reasonable jury, properly instructed, could convict. If so, the preliminary inquiry justice must commit the accused for trial: R v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 16; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 31. In determining whether it would be open to a reasonable jury to convict, the preliminary inquiry judge must keep in mind that a conviction requires proof beyond a reasonable doubt: R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at para. 35.

[28] It is not the preliminary inquiry justice’s role to assess the credibility or reliability of the evidence: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 15; Sazant, at para. 18; Arcuri, at para. 30. However, where the Crown’s case is circumstantial, the preliminary inquiry judge must engage in a limited weighing of the evidence in that she must determine whether the evidence reasonably supports the inferences the Crown wishes the trier of fact to draw: Arcuri, at para. 22. Determining whether an inference may reasonably be drawn is not the same as choosing between competing reasonable inferences: R. v. Singh, 2016 ONSC 3136, at paras. 10-11.

(ii) The Role of the Reviewing Court

[29] The Criminal Code does not provide a right of appeal from the decision of a preliminary inquiry judge. As a result, the decision can only be reviewed pursuant to this court’s limited common law power to review on the basis of jurisdictional error. It is not open to this court to set aside the decision of the preliminary inquiry judge simply because I would have reached a different conclusion: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19; Deschamplain, at para. 23. This is so even if the preliminary inquiry justice committed an error of law: Deschamplain, at para. 17. Only if the preliminary inquiry justice exceeded her jurisdiction may I set aside the decision. On an application by the Crown to set aside a discharge, jurisdictional error will be found to exist if the preliminary inquiry judge fails to consider the whole of the evidence or determines issues reserved for the trier of fact, such as choosing between competing inferences: Deschamplain, at paras. 18-19; Sazant, at para. 18.

B. The Alleged Jurisdictional Errors

(i) The Crown’s Theory

[30] The Crown’s theory at the preliminary inquiry, as I understand it, was as follows. The respondent and the other three accused had planned to commit a robbery using firearms and that all of them were subjectively aware that a murder was likely to take place. As a result, all of the accused are guilty of murder by virtue of s. 229(c) of the Criminal Code, which provides that a person who does something for an unlawful object which he knows is likely to cause the death of another person and thereby causes death is guilty of murder. Furthermore, because the murder of Mr. Green was committed while the respondent was forcibly confining Mr. Green, the respondent is also guilty of first degree murder by virtue of s. 231(5)(e) of the Code.

(ii) No Evidence or Insufficient Evidence

[31] The Crown submits that in failing to conclude that it was open to a reasonable trier of fact to adopt the Crown’s various theories of liability, the preliminary inquiry judge failed to consider all of the evidence and/or chose between competing inferences, thereby exceeding her jurisdiction. More specifically, the Crown submits that this case is similar to R. v. Bryce, 2015 ONSC 7004 or R. v. Ali, 2018 ONCA 238, where preliminary inquiry judges erroneously concluded that there was no evidence, as opposed to insufficient evidence of an essential element of an offence.

[32] In the context of an application for certiorari, there is a difference between a preliminary inquiry judge wrongly concluding that there is no evidence of an essential element as opposed to insufficient evidence. The former is an error of jurisdiction whereas the latter is not: Ali, at para. 6. As observed in Bryce, at para. 29, “the distinction is admittedly a fine one”. However, it is a distinction that makes sense if one considers the different ways in which the drawing of inferences can become impermissible speculation, as was explained in R. v. Munoz (2006), 86 O.R. (3d) 124 (S.C.J.), at paras. 25-29:

… [T]here are two ways in which inference drawing can become impermissible speculation and I will discuss each in turn.

The first step in inference drawing is that the primary facts, i.e. the facts that are said to provide the basis for the inference, must be established by the evidence. If the primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation.

The second way in which inference drawing can become impermissible speculation occurs where the proposed inference cannot be reasonably and logically drawn from the established primary facts. This possibility stems precisely from the fact that an inductive conclusion is not necessarily valid. As McLachlin C.J.C. put it in Arcuri at 31-2:

[W]ith 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. [Emphasis added]

Consequently, one can overreach and draw an inference that should not properly be drawn from the primary facts.

[33] As noted in Munoz, the second type of impermissible speculation is clearly within the jurisdiction of a preliminary inquiry judge, even if he or she errs. However, the first type of impermissible speculation does not involve a determination of whether an inference can be reasonably drawn from established primary facts, but, rather whether the primary facts are established. Determining whether or not facts are established is clearly a matter that is reserved to a trier of fact. Thus, if a preliminary inquiry judge erroneously concludes that the primary facts from which the Crown seeks to have inferences drawn do not exist, he or she has either failed to consider all of the evidence, or else has decided issues reserved for the trier of fact. Either way, the error is jurisdictional in nature. This is the type of jurisdictional error that occurred in Bryce and Ali.

(iii) The Reasons in This Case

[34] In this case, the preliminary inquiry judge was clearly aware of and accepted the existence of the primary facts on which the Crown relied. A preliminary inquiry judge does not need to consider primary facts at length in her analysis and her reasons need not reflect “a verbalization of the entire process engaged in”: R. v. Turner, 2012 ONCA 570, 292 C.C.C. (3d) 69, at para. 27; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 525. When read as a whole, the preliminary inquiry judge’s reasons clearly demonstrate that she was aware of her obligation to consider all of the evidence and did so. Having done so, she concluded that the inferences that the Crown submitted should be drawn from those primary facts were simply not reasonable.

[35] Put simply, the preliminary inquiry judge “weigh[ed] the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw” and concluded that it was not: Arcuri, at para. 32. Even if she was wrong, she acted within her jurisdiction and it is not for me to substitute my view of the sufficiency of the evidence for hers: R. v. Young, 2010 ONCA 156, at paras. 1-3, aff’g [2009] O.J. No. 5879 (S.C.J.).

C. Robbery

[36] The preliminary inquiry judge concluded that the evidence did not support any reasonable inference that the respondent was part of a plan to rob anybody. Her reasons make it clear that she did not come to this conclusion because she failed to consider all of the evidence or chose between competing inferences. Rather, she concluded that there was “no logical basis in the evidence to support the inference”. It is not for me to substitute my opinion for hers.

[37] In any event, I agree with the preliminary inquiry judge’s conclusions. Drawing reasonable inferences from the evidence requires more than simply postulating a narrative that is consistent with the evidence, as the Crown has done in this case. As was observed in United States v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.), at para. 7, “the process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess.” As the preliminary inquiry judge noted, the accused had no way of knowing that Mr. Green and Mr. Mohammed would go to the back of the restaurant and the respondent was not present when the robbery took place. The suggestion that the respondent went out on the street to check if the police were nearby makes no sense as he never spoke to the robbers after doing so. The Crown’s theory that the respondent played a role in a planned robbery was entirely speculative.

D. Murder

(i) [Section 231(5)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(e) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[38] The Crown submits that the respondent is guilty of first degree murder under s. 231(5)(e) of the Criminal Code. While not entirely clear, it appears to be the Crown’s theory that the respondent was a party to the murder pursuant to s. 21(2).

[39] Section 231(5)(e) provides as follows:

231. (5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(e) section 279 (kidnapping and forcible confinement);

[40] The respondent did not forcibly confine the deceased. However, s. 231(5)(e) does not require that the victim of the forcible confinement be the same person as the victim of the murder: Russell, at para. 43. It does, however, require that the accused be guilty of both the underlying offence and the murder: R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306, at p. 325. As observed in R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at para. 54, “it is not enough that the killing occurred in the course of the unlawful confinement; the prosecution must prove that the accused caused the death.” At a minimum, “the actions of the accused must form an essential, substantial and integral part of the killing of the victim”: Harbottle, at pp. 323-324; Ferrari, at para. 54. Put another way, the accused’s participation in the killing must be “sufficiently immediate, direct and substantial to warrant the greater stigma and sentenced attached to first degree murder”: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 61; Ferrari, at paras. 57-59.

[41] Relying on R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.), at para. 108, the Crown submits that there was evidence that the forcible confinement and the murder were both part of a “single transaction” and that the respondent knew that UK#1 was armed. Even if the unlawful confinement and the murder were part of a single transaction, I cannot see how this amounts to evidence that the respondent’s action formed an “essential, substantial and integral” part of the killing, which is a required element even if the accused is a party under s. 21(2): Ferrari, at para. 68.

[42] In any event, the preliminary inquiry judge expressly found that there was “no evidence upon which a jury properly instructed could reasonably conclude that Mr. Oppong was an essential, integral and substantial part of the killing”. Once again, she did not choose between competing inferences. Rather, she concluded that the inference which the Crown wished the trier of fact to draw was not reasonable.

[43] The preliminary inquiry judge was also not satisfied that it could be reasonably inferred that the respondent knew that UK#1 was armed. This conclusion was supported by the record. There was no evidence that UK#1 had produced his gun prior to shooting at Mr. Green. While it was clear that the men were known to each other, there was no evidence as to the nature of their relationship. In any event, even if the respondent had been aware that UK#1 was armed, this would not be sufficient to establish the mens rea for murder pursuant to s. 21(2), upon which the Crown presumably relies. That section would require that there be evidence that the respondent was not only aware that UK#1 had a gun, but also subjectively aware that it was probable that he would use it: R. v. Young, 2009 ONCA 549, 246 C.C.C. (3d) 417, at paras. 12-13. As the preliminary inquiry judge concluded, such subjective awareness could not be reasonably inferred from the evidence.

[44] The Crown does not appear to be relying on s. 21(1). In any event, there is no evidence that anything the respondent did had the effect of aiding or abetting the murder. By the time UK#1 began shooting at Mr. Mohammed, the respondent was on his way out of the restaurant.

(ii) [Section 229](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(c) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[45] The Crown also relies on s. 229(c) of the Code, which provides as follows:

229. Culpable homicide is murder

(c) where a person, for an unlawful object, does anything that he knows [or ought to know] is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.[^3]

[46] Reliance on this section is based on the Crown’s theory that the respondent was part of the plan to commit a robbery and was subjectively aware that murder was a probable consequence. As explained earlier, the preliminary inquiry judge was of the view that neither the respondent’s participation in a plan nor his subjective awareness of the likelihood of murder could be reasonably inferred from the evidence. She was entitled to reach this conclusion and did not exceed her jurisdiction in doing so.

IV. DISPOSITION

[47] The application is dismissed.

Justice P.A. Schreck

Released: June 11, 2018.

[^1]: The bulk of the evidence is made up of video footage taken from a number of security cameras in various locations within the restaurant. The times at which the events took place are indicated on the video. For the purposes of the preliminary inquiry, the accuracy of those times was not in dispute, nor were the identities of the various parties in issue.

[^2]: Mr. McKenzie’s committal for first degree murder was quashed on an application for certiorari and a committal for second degree murder was substituted: R. v. McKenzie, 2018 ONSC 2006.

[^3]: The portion of the section in square brackets is unconstitutional and of no force or effect: R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, at p. 648; R. v. Shand, 2011 ONCA 5, 104 O.R. (3d) 291, at para. 121.