Court File and Parties

COURT FILE NO.: CR-18-10000572-0000 DATE: 20181031 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – NERVILLE FERDINAND

COUNSEL: J. Capozzi, for the Crown D. Smith and G. Igbokwe, for Mr. Ferdinand

HEARD: October 25-26, 2018

RULING RE: CROWN’S ALTERNATIVE THEORY OF LIABILITY

SCHRECK J.:

[1] Nerville Ferdinand is charged with having committed an aggravated assault on Tristan Kelly and has elected to have a jury trial. There is no issue that Mr. Ferdinand was holding a handgun which discharged and that the bullet hit Mr. Kelly, causing him serious and permanent injuries. The central issue for the jury to determine is whether the handgun discharged while Mr. Ferdinand was committing an assault contrary to s. 265(1)(a) or 265(1)(b) of the Criminal Code, or whether it was discharged accidentally. Four witnesses testified as to the circumstances leading up to the discharge of the handgun.

[2] Two Crown witnesses gave evidence from which the jury could conclude that Mr. Ferdinand intentionally aimed the gun at Mr. Kelly and shot him. Another Crown witness and Mr. Ferdinand gave evidence from which the jury could conclude that Mr. Ferdinand did not intend to fire the gun, although the jury could conclude that it went off while Mr. Ferdinand was intentionally threatening, by an act or a gesture, to apply force to another person.

[3] The Crown also wishes to advance a third theory, which is that Mr. Ferdinand was intentionally attempting to shoot another person, referred to during the trial as “Jimbo”, but missed and hit Mr. Kelly instead, thereby making him guilty of aggravated assault through the operation of the doctrine of transferred intent. The defence objects to this theory being left to the jury on the basis that no witness testified to seeing Mr. Ferdinand aim at Jimbo.

[4] The following reasons explain why I have concluded that there is no air of reality to the Crown’s alternative theory. [1]

I. EVIDENCE

A. The Events Leading Up to the Discharge of the Firearm

[5] On the evening of June 17, 2014, Mr. Ferdinand went to the apartment of a friend of his who was referred to at trial as Salih. Salih lived in an apartment on Bathurst Street which he shared with another individual known as Jimbo. Jimbo claimed and was believed by others to be associated with the Hell’s Angels outlaw motorcycle gang. Also present that evening were Jimbo’s girlfriend, Amy, Salih’s girlfriend, Josephine Lymberopoulos, and two other women. Of these people, only Mr. Ferdinand and Ms. Lymberopoulos testified at trial.

[6] After drinking significant amounts of alcohol, everybody at the apartment except Jimbo decided to go to a nightclub and took a taxi there. On the way to the nightclub, Mr. Ferdinand and Amy began to argue. The argument continued after they arrived at the nightclub and got out of the taxi and culminated with Mr. Ferdinand spitting on Amy’s dress. Amy immediately called her boyfriend, Jimbo. Jimbo then texted Salih and, through him, told Mr. Ferdinand that he would have to pay Jimbo a large sum of money as a “tax” for disrespecting him and his girlfriend. When Mr. Ferdinand stated that he would not do so, Jimbo threatened that he would have members of the Hell’s Angels kill Mr. Ferdinand. Mr. Ferdinand, who was by then intoxicated, decided that he would return to the apartment to speak to Jimbo in an attempt to resolve the situation. He asked Salih to go with him. Salih agreed, but first went into the nightclub to get Ms. Lymberopoulos, who had already entered.

[7] After Salih went into the nightclub to get Ms. Lymberopoulos, Mr. Ferdinand telephoned his best friend, Michael Godelia. He explained that he was having a problem and asked Mr. Godelia to meet him near Salih and Jimbo’s apartment. Mr. Godelia agreed and met with Mr. Ferdinand on College Street near Bathurst Street. Mr. Godelia also brought his younger half-brother, Tristan Kelly. Both of them observed Mr. Ferdinand to be agitated, upset and angry. Salih arrived later, although there is conflicting evidence about whether he was alone or in the company of Amy and Ms. Lymberopoulos. Mr. Ferdinand and Ms. Lymberopoulos testified that the women had arrived with Salih. Mr. Godelia and Mr. Kelly testified that had not.

[8] After Salih arrived, Mr. Ferdinand, Mr. Godelia, Mr. Kelly and Salih all walked to the apartment. According to Mr. Ferdinand and Ms. Lymberopoulos, the two women walked there with them.

B. The Layout of the Apartment

[9] The apartment is on the second floor of a house and accessed by a staircase which leads to the living room. The staircase is on the north side of the living room and is surrounded by a railing. To the east of the living room are two adjacent bedrooms, one on the north side of the apartment and the other on the south side. Both bedrooms lead to a balcony on the east side of the building. To the west of the living room is the kitchen.

C. The Discharge of the Firearm

(i) Josephine Lymberopoulos

[10] Four witnesses testified about what happened at the time Mr. Kelly was shot: Ms. Lymberopoulos, Mr. Kelly, Mr. Godelia and Mr. Ferdinand. According to Ms. Lymberopoulos, when they arrived at the apartment, Amy’s boyfriend was there and he, Salih and Mr. Ferdinand went into a bedroom. [2] Ms. Lymberopoulos and Amy then began to shout at Mr. Godelia and Mr. Kelly, telling them that they were not welcome and had to leave. They refused to do so. Everybody began to shout at each other. This lasted for five or 10 minutes.

[11] According to Ms. Lymberopoulos, the next thing that happened was that Mr. Ferdinand came out of the bedroom. She was not sure if Salih and Jimbo came out as well. Mr. Ferdinand was yelling at everybody to shut up and telling them to be quiet. Ms. Lymberopoulos described this as him trying to “overpower” their screaming by trying to be louder than they were.

[12] As Mr. Ferdinand approached the stairs, he reached into a bag that was across his shoulder and on his left hip using his right hand and removed a gun. Ms. Lymberopoulos described him as “flailing” the gun or “trying to flaunt it”. At another point, she described him as “sloppily taking the gun out”. He did not point the gun at anybody, wave it around or threaten to shoot anybody. Ms. Lymberopoulos had the impression that Mr. Ferdinand did this because nobody was listening to him.

[13] As Mr. Ferdinand removed the gun, it went off and the bullet struck Mr. Kelly, who then fell down the stairs. It all happened very fast. The gun went off before Mr. Ferdinand had a chance to “flaunt” it.

[14] On Ms. Lymberopoulos’s version of events, Mr. Kelly was on the staircase and Mr. Ferdinand was standing to the south of him at the time the gun went off. She did not recall Jimbo being in the room.

(iii) Tristan Kelly

[15] Mr. Kelly testified that when they all entered the apartment, Jimbo and the two women were in the living room. Jimbo and Mr. Ferdinand began to speak to one another loudly and aggressively and then went into a bedroom. Salih and the two women remained in the living room while Mr. Godelia and Mr. Kelly remained on the stairs.

[16] According to Mr. Kelly, both of the women were being loud and aggressive towards him and his brother and were telling them to get out. There were two dogs there and the women were telling them to bite Mr. Kelly and his brother. The dogs barked, but did not bite anybody. One of the women started pulling at Mr. Godelia’s shirt. The other woman leaned over the railing and grabbed Mr. Kelly’s shirt. Mr. Kelly grabbed her wrists to move her hand. Salih was on the top of the stairs trying to stop the other woman from attacking Mr. Godelia. Mr. Kelly testified that this altercation went on for about 30 minutes, although it felt like 10 minutes.

[17] Just before Mr. Kelly grabbed the wrists of the woman who was pulling his shirt, Mr. Ferdinand and Jimbo came out of the bedroom. Mr. Kelly did not notice how Mr. Ferdinand was moving when he re-entered the room. Mr. Kelly continued to struggle with the woman who was assaulting him. He managed to push her hands back and she moved to his right. At that point, Mr. Kelly looked up and saw Mr. Ferdinand. He testified that Mr. Ferdinand was holding a gun with his right hand that was pointed towards him. Mr. Ferdinand’s arm was straight out at shoulder height. In a statement he had given to the police, Mr. Kelly had testified that Mr. Ferdinand had “just pulled it out and shot” and that he “didn’t hold it at me”. Mr. Kelly agreed that he was being truthful when he had given this evidence.

[18] Mr. Kelly did not see where the gun had come from and had not seen the movement of the gun. He agreed that it was possible that the gun had been moving upwards and that at some point during that motion, the gun had gone off.

[19] Mr. Kelly saw a light, heard a bang, and then fell down the stairs. This happened within seconds of when Mr. Kelly first saw the gun and there was not time for him to react. At one point in his testimony, Mr. Kelly said that he assumed that Mr. Ferdinand had meant to shoot him because he had pointed the gun at him. At another point, Mr. Kelly testified that he could not say whether Mr. Ferdinand had shot him intentionally or by accident. He was not aware of any reason why Mr. Ferdinand would want to shoot him.

[20] According to Mr. Kelly, at the time the gun discharged, Mr. Ferdinand was standing in the living room to the south of the staircase. Jimbo was behind Mr. Ferdinand and slightly to his left.

(iv) Michael Godelia

[21] Mr. Godelia testified that women were already in the apartment when they arrived. They began to shout and him and Mr. Kelly as soon as they arrived. Salih was shouting at everybody to be quiet, and then entered his bedroom on the northeast corner of the apartment. Mr. Ferdinand and Jimbo were arguing in the living room and both were loud and appeared angry. They then went into the bedroom on the southeast corner of the apartment.

[22] Mr. Godelia was standing on the first step and his brother was on the third or fourth step. The two women were yelling at them, hitting them and telling them to leave. There were two dogs, which were barking. Mr. Godelia said that he would not leave and began calling to Mr. Ferdinand to come out of the bedroom.

[23] Mr. Godelia testified that Mr. Ferdinand came running out of the bedroom and around the railing, with Jimbo behind him. As he reached the railing, he reached into the bag at his side and pulled out a gun with his right hand. As Mr. Ferdinand ran, the two women moved back. Mr. Ferdinand reached the top of the stairs, where he stopped and extended both of his arms out while holding the gun. He appeared to aim the gun directly at Mr. Kelly and fired, hitting him.

[24] On Mr. Godelia’s account, Mr. Ferdinand was standing at the top of the staircase and immediately west of it at the time he fired the gun. Mr. Kelly was on the staircase, about a metre away from Mr. Ferdinand and directly east of him. Mr. Kelly was facing into the living room with his right side facing Mr. Ferdinand. There is no issue that the bullet hit the left side of Mr. Kelly’s face. Jimbo was standing to the south of the staircase, near the railing. He was in front of but to the right of Mr. Ferdinand.

(v) Nerville Ferdinand

[25] Mr. Ferdinand testified that upon arriving at the apartment, he, Jimbo and Salih entered the bedroom on the northeast corner of the apartment. As they did so, Mr. Godelia put a bag with a strap over his head and told him to hold it. He did not think anything of this at the time, but upon feeling the bag he discovered that it contained a gun.

[26] While in the bedroom, Mr. Ferdinand tried to resolve the issues with Jimbo, but Jimbo continued to insist that Mr. Ferdinand had to pay him $700 or else the Hell’s Angels would kill him. Mr. Ferdinand then heard shouting coming from the living room. He and Jimbo then left the bedroom to see what was going on.

[27] Mr. Ferdinand testified that he entered the living room with Jimbo behind him. He saw Mr. Godelia at the top of the stairs involved in a fight with Ms. Lymberopoulos, who was trying to punch him. Amy was telling the two dogs to bite Mr. Godelia and Mr. Kelly. Salih was in the living room telling everybody to shut up. Jimbo also began to shout, telling everybody to shut up and that he would kill everybody and get the Hell’s Angels to go after them. The entire situation was very loud.

[28] Mr. Ferdinand testified that he wanted to quiet everybody down, so he decided to take the gun out of the bag. He did so without thinking. He testified that his intention was to get everybody’s attention in the way a teacher in a noisy classroom might strike a table with a ruler. He did not intend to threaten anybody. As he pulled the gun out of the bag, it discharged accidentally and Mr. Kelly was hit by the bullet. Mr. Ferdinand did not intend to aim at anybody or shoot at anybody.

[29] According to Mr. Ferdinand, he was to the south of the staircase at the time the gun went off. Amy was in front of him, as was Mr. Kelly, who was on the staircase. Jimbo was behind him.

II. ANALYSIS

A. The Crown’s Theories

[30] The parties agree that it would be open to the jury to find that Mr. Ferdinand intentionally aimed at Mr. Kelly and shot him. They agree that it would also be open to the jury to find that when he took the gun out of the bag, Mr. Ferdinand intended that gesture as a threat to the two women, who were attacking Mr. Godelia or Mr. Kelly, or as a threat to everybody in the room in order to make them be quiet. If so, Mr. Ferdinand would be guilty of assault pursuant to s. 265(1)(b) of the Criminal Code. If the jury also concluded that bodily harm was an objectively foreseeable consequence of the assault, Mr. Ferdinand would be guilty of aggravated assault as there was no issue with respect to the extent of Mr. Kelly’s injuries. [3]

[31] The Crown also wishes to advance the theory that Mr. Ferdinand discharged the firearm with the intention of shooting Jimbo, but hit Mr. Kelly accidentally, thereby making him guilty of aggravated assault through the operation of the doctrine of transferred intent. Crown counsel acknowledges that no witness testified to seeing Mr. Ferdinand aim the gun at Jimbo. However, she submits that Mr. Ferdinand had a motive to shoot Jimbo and on Mr. Godelia’s version of events, at the time Mr. Ferdinand aimed at and shot Mr. Kelly, Jimbo was standing near to Mr. Kelly. Based on this, she submits that it would be open to the jury to infer that although Mr. Ferdinand was, on Mr. Godelia’s account, aiming at Mr. Kelly, he really intended to shoot Jimbo.

B. How the Issue Arose

[32] This issue arose during the cross-examination of Mr. Ferdinand when Crown counsel suggested to him that he had been aiming at Jimbo but had missed. Defence counsel objected to this question, submitting that there was no good faith basis for the suggestion because no witness had testified to seeing Mr. Ferdinand aim at Jimbo. In the absence of the jury, I ruled that the Crown would be permitted to make the suggestion. Counsel may have a good faith basis for making a suggestion even if she is not in position to call evidence to support the suggestion: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 46-48. However, I cautioned Crown counsel that if Mr. Ferdinand disagreed with the suggestion, the Crown may not be permitted to advance a theory for which there was no evidentiary basis. As Crown counsel had not anticipated that this issue would arise, I invited counsel to make further submissions later if necessary. Ultimately, Crown counsel chose not to put the suggestion to Mr. Ferdinand.

[33] The following day, after the evidence was complete but before the closing addresses, I heard more fulsome submissions on the issue. After briefly reserving, I advised counsel that the Crown would not be permitted to advance its alternative theory and that I would provide reasons for my decision at a later date.

C. The Applicable Legal Principles

[34] It is open to the Crown to advance alternative theories of liability, provided that each theory has some basis in the evidence. This was recently explained in R. v. Figliola, 2018 ONCA 578, 141 O.R. (3d) 662, at paras. 28-29:

The Crown can advance alternative theories of liability. However, like defences advanced by an accused, a theory of liability can be left with the jury only if there is “an air of reality” in the evidence to that theory. Subject to fairness concerns peculiar to individual cases, a theory of liability should be left with a jury if a properly instructed jury, acting reasonably, could convict based on that theory: R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 141.

The reasonableness component of the “air of reality” test incorporates a limited weighing of the evidence by the trial judge. The trial judge must determine whether there is a sufficient evidentiary basis for a properly instructed jury, acting reasonably, to render a conviction based on that theory of liability: R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at paras. 19-23; R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 21-26.

[35] To determine whether a theory of liability meets the air of reality test, the court must take the same approach as is taken in assessing whether a defence has an air of reality and ought to be left to the jury. That approach was explained by the Supreme Court of Canada in Pappas, which the Court referred to in Figliola, at paras. 22-25:

The air of reality test requires courts to tread a fine line: it requires more than “some” or “any” evidence of the elements of a defence, yet it does not go so far as to allow a weighing of the substantive merits of a defence: R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 21. A trial judge applying the air of reality test cannot consider issues of credibility and reliability, weigh evidence substantively, make findings of fact, or draw determinate factual inferences: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 87; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 12. However, where appropriate, the trial judge can engage in a “limited weighing” of the evidence, similar to that conducted by a preliminary inquiry judge when deciding whether to commit an accused to trial: see R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, cited by McLachlin C.J. and Bastarache J. in Cinous, at para. 91.

The ability of the trial judge to engage in “limited weighing” depends on the type of evidence on the record. “If there is direct evidence as to every element of the defence, whether or not it is adduced by the accused, the trial judge must put the defence to the jury”: Cinous, at para. 88. The trial judge may not engage in any weighing of direct evidence, since this would require a consideration of the inherent reliability of the evidence.

Where the evidence instead requires the drawing of inferences in order to establish the elements of a defence, the trial judge may engage in a limited weighing to determine whether the elements of the defence can reasonably be inferred from the evidence. “The judge does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence”: Cinous, at para. 91. In conducting this limited weighing, the trial judge must examine the totality of the evidence: Cinous, at para. 53; Park, [1995] 2 S.C.R. 836, at para. 13, per L’Heureux-Dubé J.

[36] As was made clear in Pappas, the issue is not whether I would conclude that Mr. Ferdinand was guilty based on this theory of liability but, rather, whether it would be reasonable for the jury to do so. As explained in Pappas, my task in determining this issue is similar to that of a preliminary inquiry judge determining whether to commit an accused for trial. It follows that the principles that apply at a preliminary inquiry also apply here. I must consider all of the evidence: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 18. I must not choose between competing inferences and where evidence is capable of supporting more than one inference, only those that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18. To be reasonable, an inference need not be easily drawn, “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117, at para. 20; R. v. Katwaru (2001), 52 O.R. (3d) 321 (C.A.), at para. 41; R. v. Dwyer, 2013 ONCA 368, at para. 4.

[37] 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), 86 O.R. (3d) 134 (S.C.J.). What I must determine is on which side of that boundary the Crown’s theory lies.

D. The Evidence in This Case

[38] In this case, there is no direct evidence that Mr. Ferdinand intended or attempted to shoot Jimbo. The Crown submits that there is circumstantial evidence of this if certain parts of the evidence are accepted, namely, Mr. Ferdinand’s motive to harm Jimbo because of Jimbo’s threats and demands for money combined with Mr. Godelia’s evidence as to Jimbo’s position relative to where Mr. Ferdinand was standing at the time the gun was discharged. As I understand the Crown’s argument, it would be open to the jury to accept Mr. Godelia’s evidence that Jimbo was standing near Mr. Kelly when Mr. Kelly was shot and Jimbo’s proximity to where Mr. Ferdinand aimed, combined with Mr. Ferdinand’s motive, supports the inference that Mr. Ferdinand intended to shoot Jimbo.

[39] To find that Mr. Ferdinand was intending to shoot Jimbo, the jurors would have to reject the evidence of all of the witnesses except for Mr. Godelia on the issue of where everybody was located at the time the gun was discharged. They would also have to reject Mr. Godelia’s evidence that Mr. Kelly’s right side was facing Mr. Ferdinand, as it is not in dispute that the bullet hit Mr. Kelly’s left side.

[40] More importantly, on Mr. Godelia’s evidence, Mr. Kelly was standing a metre away from Mr. Ferdinand when he was shot. According to photographs and diagrams Mr. Godelia marked, Jimbo was standing further away and to Mr. Ferdinand’s right. I accept that it would be open to the jury to conclude that Mr. Ferdinand is a bad shot, especially given his level of intoxication. However, on this evidence Mr. Ferdinand would have been shooting at a person directly in front of him and a metre away while intending to shoot somebody who was at least 45 degrees in another direction and further away. It is one thing for a person to be a bad shot. It is quite another for a person to be shooting in an entirely different direction. If Mr. Godelia’s version of events is accepted, the conclusion that Mr. Ferdinand is a bad shot is not, in my view, reasonable. The only reasonable conclusion is that Mr. Ferdinand was aiming at Mr. Kelly.

[41] The Crown is correct that there was evidence from which the jury could infer that Mr. Ferdinand had a motive to shoot Jimbo. However, no witness testified that he attempted to do so. It is of course open to the jury to accept all, part or none of any witness’s evidence. However, it is not open to the jury to reject the evidence of all of the witnesses and instead rely on a completely different version of events that is not only not supported by the evidence of the witnesses, but contradicted by it. Finding facts without evidence to support them is the very definition of speculation.

[42] In my view, even on a view of the evidence most favourable to the Crown, no reasonable trier of fact could conclude that Mr. Ferdinand was intending or attempting to shoot Jimbo and shot Mr. Kelly by accident. The only reasonable inferences supporting a finding of guilt are that Mr. Ferdinand intended to shoot Mr. Kelly, or else he intended to use the gun to threaten somebody and discharged it unintentionally while doing so. There is ample evidence supporting either theory of liability, but no evidence supporting any other.

[43] For these reasons, the Crown may not advance the theory that Mr. Ferdinand hit Mr. Kelly while attempting to shoot Jimbo.

Justice P.A. Schreck

Released: October 31, 2018.

COURT FILE NO.: CR-18-10000572-0000 DATE: 20181031 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – NERVILLE FERDINAND RULING P.A. Schreck J. Released: October 31, 2018.

Footnotes:

[1] This was retrial after the Court of Appeal set aside Mr. Ferdinand’s acquittal on a charge of aggravated assault from an earlier trial: R. v. Ferdinand, 2018 ONCA 836. The theory that Mr. Ferdinand had shot Mr. Kelly while attempting to shoot Jimbo had been left to the jury at the first trial. While counsel advised that the evidence at the first trial was largely the same, it appears that the issue of whether there was an air or reality to the Crown’s alternative theory was never raised.

[2] Unlike the other witnesses, Ms. Lymberopoulos did not refer to Amy’s boyfriend as Jimbo. She believed Jimbo to be another resident of the apartment who was not present and could not recall the name of Amy’s boyfriend. It is clear, however, that the person she referred to as Amy’s boyfriend was the same person that all of the other witnesses referred to as Jimbo. For ease of reference, I will refer to this person as Jimbo.

[3] Mr. Ferdinand was initially charged with attempted murder but the jury at the first trial did not reach a verdict on that count. The Crown has chosen not to retry Mr. Ferdinand on the attempted murder count and has proceeded only on a single count of aggravated assault.