Court File and Parties

COURT FILE NO.: CR-18-70000153-00MO DATE: 20181030 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – IAN ALBERT OHAB Defendant/Applicant

COUNSEL: P. Alexander, for the Crown/Respondent G. Chan and A. Mehta, for the Defendant/Applicant

HEARD: October 9, 2018

Molloy J.:

REASONS FOR DECISION

The Application

[1] Ian Ohab brings this application for certiorari to quash the preliminary hearing decision of Newton J. of the Ontario Court of Justice committing Mr. Ohab for trial on the charge of first degree murder in connection with the death of Melissa Cooper in April 2016. That trial is scheduled to commence in the Superior Court on January 4, 2019.

[2] It is conceded by the defence, both before me and in the provincial court, that there was sufficient evidence at the preliminary hearing to warrant Mr. Ohab’s committal on the charge of indecently interfering with human remains, as well as on second degree murder. The only issue is whether the preliminary hearing judge exceeded her jurisdiction by committing Mr. Ohab for trial on first degree murder in the absence of any evidence to support that charge.

[3] The Crown accepts that there is no evidence of planning or deliberation. Nevertheless, at the preliminary hearing, the Crown argued that the accused should be committed on first degree murder because the death was caused “while committing or attempting to commit” sexual assault, relying on s. 231(5)(b) of the Criminal Code. On the argument of this application, the Crown took the position that committal on first degree murder was also warranted, in the alternative, because the death was caused “while committing forcible confinement,” relying on s. 231(5)(e) of the Criminal Code. These paragraphs stipulate that if a sexual assault or forcible confinement are part of a continuum of activity sufficiently connected to constitute a single transaction with a murder, the murder is first degree murder, irrespective of whether it was planned or deliberate.

Background Facts

[4] The deceased Melissa Cooper was a drug user, with a long history of addiction. Late on the night of April 14, 2016, Ms. Cooper visited a friend, Maurice Liberty, in his apartment at 220 Oak Street in Toronto. After a short visit, she left her backpack with him, saying she would be right back. She took her cell phone with her. There was evidence from several witnesses at the preliminary hearing that Ms. Cooper always carried her phone with her.

[5] The apartment building at 220 Oak St. is known to police as a building where drugs are likely trafficked. Video footage from the building’s security cameras show that after leaving Mr. Liberty’s apartment, Ms. Cooper attended various different floors in the building. At the hearing, Det. Sgt. Browne testified that he believed her to be searching for drugs.

[6] The last time Ms. Cooper is seen on video was at 1:36 a.m., when she was in the elevator with the accused, Ian Ohab. There is an awkward embrace between the two. Mr. Ohab then appears to be gyrating his hips, grinding into Ms. Cooper’s pelvic area. She breaks off that advance and puts one arm briefly around his neck, in a manner similar to a headlock. The two of them then simply stand slightly apart from each other until the elevator doors open. Mr. Ohab exits first, turning to the left towards his apartment. Ms. Cooper simply follows behind him. She appears to be acting of her own volition.

[7] Six minutes after Ms. Cooper left the elevator (at 1:42:05 a.m.), a call was made from her cell phone, which appeared to still be in the building according to information retrieved from cell towers. That call lasted 204 seconds. Another call was made at 1:45:56 a.m., which lasted for only 2 seconds. That was the last outgoing call or text message on her phone. There were many incoming calls and messages thereafter, but nothing connecting her phone to a cell tower until at least 8:30 a.m., meaning that at some time between 1:45 a.m. and 8:30 a.m., the cell phone was out of power or switched off, or destroyed. It was never found.

[8] Ms. Cooper’s friend in the building, Mr. Liberty, was concerned when she did not return as she had indicated she would. He started searching for her every hour on the hour throughout the early morning hours after she left, but to no avail. Then, Ms. Cooper failed to appear at a scheduled meeting with another person on April 15, 2016. She could not be found at her apartment.

[9] On April 19, 2016, a portion of Ms. Cooper’s body (the torso from approximately the navel to the upper thighs) was found in a box in a back alley on Broadview Avenue. It was unclothed. Ms. Cooper’s right arm was found on May 3, 2016 at a recycling plant. The rest of her body has never been recovered, nor were any of her possessions.

[10] Forensic experts who examined the remains were unable to determine a cause or mechanism of death, nor could they pinpoint a precise time of death. The body had been dismembered after death. The expert witness who testified at the preliminary hearing opined that an implement such as a saw had been used in that process, based on the marks on the skin and bones. There was some lividity, the distribution of which suggested that Ms. Cooper was on her back or face up for some number of hours (probably from two to 12 hours) after death. Toxicological analysis of her tissue showed that she had consumed alcohol and cocaine prior to death. The timing of drug and alcohol consumption and the degree of intoxication at any given time could not be determined. No semen was found in either the vagina or rectum.

[11] After Mr. Ohab is seen leaving the elevator with Ms. Cooper at 1:36 a.m. on April 15, he was not seen again until 9:43 a.m. on April 16, when he left the apartment building on his bicycle, returning at 11:44 a.m. He left again at 12:09 p.m. that same day, returning at 12:26 p.m. carrying a Home Hardware bag. A 10-inch tubular hacksaw was purchased at a nearby Home Hardware at 12:17 p.m. that day. Over the next few days, Mr. Ohab can be seen on video surveillance making multiple trips in and out of the building, often carrying a gym bag or pulling a grocery-style cart. He was also seen discarding a rolled up carpet and a dresser at the back of the building.

[12] A witness who lived in the building testified that a few days prior to the forensic team arriving to search Mr. Ohab’s apartment, Mr. Ohab asked him for some dish soap and bleach. The forensic team searched the apartment on April 29, 2016. A small amount of Ms. Cooper’s blood was found under a bathroom tile.

The Decision Under Review

[13] The preliminary hearing judge began her Reasons by correctly stating the law to be applied in determining the sufficiency of the evidence in a case based on circumstantial evidence. She then considered the law relating to first degree murder and second degree murder, and what was required under s. 231(5) to establish first degree murder in the course of a sexual assault. She held (correctly) that there must be one continuous sequence of events to form a single transaction.

[14] Based on the evidence before her, the preliminary hearing judge concluded that a reasonable jury could conclude that the conduct of Mr. Ohab in the elevator constituted a sexual assault. Further, in light of (i) the timing of that incident, (ii) the surveillance footage, (iii) the timing of the use of Ms. Cooper’s cell phone, and (iv) her customary use of that cell phone, the preliminary hearing judge concluded that a jury could infer that the sexual activity continued after Ms. Cooper left the elevator with Mr. Ohab and that she was killed in close proximity thereafter.

[15] The preliminary hearing judge then considered the evidence of post-offence conduct, including dismemberment of the body, disposing of the body in pieces, removal of Ms. Cooper’s clothing, and substantial efforts to clean the apartment. She concluded that this evidence could be considered by a jury to support an inference that Mr. Ohab was trying to conceal the nature and extent of the injuries.

[16] The preliminary hearing judge found that a reasonable jury could conclude that the entire attack on Ms. Cooper had the character of a sexualized murder and consequently committed Mr. Ohab for trial on the charge of first degree murder, pursuant to s. 231(5)(b) of the Criminal Code.

The Role of the Reviewing Court on Certiorari

[17] My role on this application is limited in scope. It is not my task to review the decision of the preliminary hearing judge to determine whether she made any errors of fact or law. My sole task is to determine whether the preliminary hearing judge acted within her jurisdiction in making the decision she did. That said, the jurisdiction of the preliminary hearing judge is strictly statutory and a person can be committed for trial on a charge only if there is some evidence of each of the constituent elements of that offence. Where there is no evidence of a required element, it is a jurisdictional error to commit for trial on that charge. (Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 104; R. v. Russell, [2001] 2 S.C.R. 804, at paras. 18-30; R. v. Sazant, [2004] 3 S.C.R. 635, at para. 16; R. v. DesChamplain, [2004] 3 S.C.R. 601, at paras. 12 and 19; and R. v. Cinous, [2002] 2 S.C.R. 3, at paras. 82, 123, and 124.)

[18] The same test applies in cases based on circumstantial evidence, except that there must be some limited weighing of the evidence to assess whether it is capable of supporting the inferences the Crown will ask the jury to draw. The inferences to be drawn from the circumstantial evidence do not need to be “compelling” or even “easily drawn.” The existence of competing inferences is not an obstacle to committal, even where the countervailing inferences are more probable than those consistent with the guilt of the accused. If there is any possible reasonable inference in favour of the Crown’s position, regardless of its strength, that is the inference that must be drawn by the preliminary hearing judge. A failure to do so would constitute jurisdictional error. Further, the question is not whether this is an inference I would draw as the application judge, but rather whether there was any possible inference that a jury could draw. (Sazant, supra, at para. 45; DesChamplain, supra, at para. 15; and R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 6.)

Analysis

[19] Having reviewed the video footage from the elevator, I find it difficult to characterize the nature of the interaction between Mr. Ohab and Ms. Cooper. If I were the trier of fact, I would not be comfortable drawing the inference that what occurred between them was a sexual assault. To me, their interaction could easily be light-hearted bantering. However, I readily concede that their conduct is ambiguous and that reasonable persons could disagree on what is happening. I also accept that one available inference is that Mr. Ohab touched Ms. Cooper in a sexual manner without her consent, and that his sexual overture was rebuffed. Given that this is an available inference, it must be drawn and the preliminary hearing judge committed no jurisdictional error in doing so.

[20] I also readily accept that on the whole of the evidence there is an available inference that Ms. Cooper either was killed at around the time her cell phone went silent shortly after leaving the elevator, or was held against her will and her cell phone was disabled in some way at about that time.

[21] If the former, the question is whether the proximity in time between the sexual assault in the elevator and the death is sufficient to constitute a continuous sequence of events, meeting the requirement of “while committing or attempting to commit” sexual assault in s. 231(5) of the Criminal Code. The applicant argues that there is no evidence that the minor sexual activity in the elevator continued or escalated in Mr. Ohab’s apartment. There was no semen found on any of the remains and the bruising on the torso could have been caused by any kind of assault or accident. The applicant therefore submits that there is no nexus between the incident in the elevator and the death of Ms. Cooper to support drawing an inference that the death was caused while committing sexual assault.

[22] The applicant relied on the decision of Garton J. in R. v. Wilson, 2015 ONSC 7224, rev’d 2016 ONCA 235. In that case, the deceased was a prostitute. There was video surveillance evidence to support an inference that the accused had been in the deceased’s apartment between 12:00 p.m. and 1:08 p.m. A fire alarm went off at 1:12 p.m., and there was forensic evidence that a fire had been deliberately set in the deceased’s apartment. The dead body of the deceased was found in the apartment, with her head and shoulders lying on the foot of her bed and the rest of her body lying on the floor. Based on the evidence of the pathologist, the trier of fact could reasonably conclude that she had been killed by strangulation prior to the fire being set. The accused’s semen was found in the mouth of the deceased. Based on the whole of the evidence, there was an available inference that the accused had strangled the deceased and then set fire to her apartment. The accused was charged with first degree murder. He conceded at the preliminary hearing that there was sufficient evidence to commit him for trial on a charge of second degree murder, but no evidence of a sexual assault to support a committal for first degree murder. However, the preliminary hearing judge concluded that the murder took place while committing or attempting to commit a sexual assault and therefore committed the accused for trial on first degree murder. On certiorari, Garton J. set that decision aside, finding that the preliminary hearing judge had conflated the fact that the deceased’s death was caused by a violent non-consensual act with the question of whether the sexual activity was non-consensual. She found no evidence to connect the violent act causing death to a sexual assault. The Crown appealed to the Court of Appeal, which overruled Justice Garton’s decision.

[23] I agree with counsel for the applicant that there are considerable similarities between the Wilson case and the issues now before me. I also agree that the decision of Garton J. would support the argument now being made by the applicant before me that there is no nexus between the violent act causing death and the sexual assault. However, on appeal, the Court of Appeal overruled Justice Garton and held that “there was evidence upon which a reasonable jury, properly instructed, could reasonably infer that the sexual encounter was not consensual.” (R. v. Wilson, 2016 ONCA 235 at para. 29, rev’g 2015 ONSC 7224.) The Court of Appeal cited the nature and location of the injuries, the position of the accused on the bed, and the short period of time during which the accused was in the apartment as facts supporting a logical inference that the sexual contact between them was non-consensual. The Court noted, in particular, that the jury could infer that the position of the body reflected the deceased’s “last position when alive and is consistent with a position in which the sexual act would take place” and that the neck strangulation and position of the body allowed “for the reasonable inference that the oral sex was – at least at some point – forced.” (Ibid, at para. 32.)

[24] In Wilson, the deceased was receiving and answering calls on her phone until 12:28 p.m., and the preliminary hearing judge inferred that the sexual activity and the accused’s death both occurred in the approximately 40 minutes between 12:28 p.m. and 1:08 p.m., the time when the accused left the apartment. Referring to this timeframe, the Court of Appeal held (at para. 34):

Putting the case at its highest for the Crown, this time frame supports the inference that the sex was not consensual. During this short time, many things occurred: sexual contact between the accused and the deceased; the infliction of a violent beating; neck compression causing death; the gathering of combustible items to set three separate fires; the theft of the victim’s bank card; and the attacker found and took the deceased’s roommate’s shirts. The short timeline allows for the inference that the violence overlapped with the sexual act, particularly in light of the deceased’s injuries.

[25] The case before me is not completely on all fours with that of Wilson. For example, the mechanism of death is unknown in this case. Moreover, there was substantial evidence of consensual sexual activity in the Wilson case, whereas the reverse is true here – there is actual evidence of a sexual assault by Mr. Ohab on the deceased. Further, if the time of death is taken as being proximate to the point when Ms. Cooper’s phone became inactive, the timeframe is even more condensed than was the case in Wilson.

[26] The applicant here also relies on the decision of the Court of Appeal in R. v. MacDonald, setting aside a committal for trial on a charge of first degree murder on the basis that there was no evidence to support an inference of non-consensual sex proximate in time to the murder. The Crown had presented evidence at the preliminary hearing that the deceased had an aversion to anal intercourse. There was evidence of sexual contact between the deceased and the accused in the form of semen mixed with saliva on the bed sheets, which the Court held was consistent with fellatio. There was also a very small sample of semen in the deceased’s rectum, but it was the semen of the deceased, not that of the accused, and it could have migrated from the bed sheets into the anal cavity. The Court of Appeal held that on this evidence, there was no legitimate basis to draw an inference that there had been non-consensual sexual activity prior to the murder. In Wilson, the Court of Appeal referred to its earlier decision in MacDonald, and distinguished it on the basis that there was no evidence of anal intercourse, which was said to be the actus reus of the sexual assault. The Court of Appeal contrasted that situation to the one before it in Wilson where although “the inference was available that the oral sex was consensual, there [was] evidence to support the competing inference that it was not.” (Wilson, supra note 5, at para. 36.)

[27] In my opinion, the Crown’s theory on the evidence in the case before me falls perilously close to conjecture, as opposed to reasonable inferences. However, given the evidence about Ms. Cooper’s habitual use of her phone, there is an available inference that she either died at around the time her phone went out of service or she was held against her will from that point until she died. If she died close in time to the time she stopped using her phone, I consider the Court of Appeal’s decision in Wilson to be compelling authority for the conclusion that the short timeframe, when combined with the sexual assault in the elevator, supports a reasonable inference that the sexual assault and murder were part of a continuum of activity sufficiently connected to constitute a single transaction and to therefore support a committal on first degree murder within the meaning of s. 231(5)(b) of the Criminal Code. It would also be open to the jury to conclude that if the murder did not happen in conjunction with the sexual assault, it must have occurred later – after a period of confinement – which would support a committal for first degree murder under s. 231(5)(e) of the Criminal Code.

[28] In coming to this conclusion, I have not found it helpful or necessary to deal with the difficult legal issue of the extent to which the after-the-fact conduct by the accused in dismemberment of the body can be used to support a conclusion of first degree murder, rather than second degree murder. I leave that issue for another day and another court.

Conclusion

[29] In the result, the application for certiorari is dismissed. The accused shall stand trial on the charge of first degree murder.

MOLLOY J. Released: October 30, 2018