R. v. Najib Amin, 2018 ONSC 7660

COURT FILE NO.: CR-18-50000159-0000

DATE: 20181220

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

NAJIB AMIN

Applicant

Paul Zambonini and Scott Arnold, for the Respondent

Jennifer Penman, for the Applicant

HEARD: December 17, 2018

AN ORDER WAS MADE UNDER s. 539 of the Criminal Code directing that evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way before the accused is discharge or the trial is ended.

RULING ON CERTIORARI APPLICATION

G. ROBERTS, J.

1Najib Amin was committed to stand trial for the first degree murder of Sylvia Consuelo following a preliminary inquiry conducted by Justice Merenda of the Ontario Court of Justice.

2Sylvia Consuelo was found dead in her apartment at 121 Kendleton Drive at about 4 am on January 30, 2016. She was lying on her back on the floor. Her face was covered with what looked like garbage. When it was uncovered, there was dried blood around her nose. She was wearing a top but no pants. Unopened condoms were on lying top of her and around her.

3The cause of death was found to be mechanical asphyxia with blunt impact injuries, possibly by smothering (blocking her mouth and nose), and sitting on her chest (the forensic pathologist, Dr. Kristopher Cunningham, described this combination as “burking”), or by smothering and stomping. The pathologist could not say. He noted that mechanical asphyxiation could occur through different mechanisms, including pressure on the face, neck and/or chest and he could not definitively say which mechanism was used. Ms. Conseulo had marked blunt impact chest and upper abdominal trauma - her liver was lacerated, her heart torn open and “essentially crushed”, which Dr. Cunningham believed was caused by a “large degree of force” such as “stomping” or possibly by burking that involved bouncing up and down on top of the chest and abdomen. Ms. Conseulo also had a 3.5 cm full thickness laceration of her dorsal rectal wall extending into the pelvic soft tissues and associated bleeding. The pathologist interpreted this injury as having been caused by an “elongated rigid object, perforating [the] rectum and penetrating [the] pelvic soft tissues”. Both the chest and abdominal trauma, and the anal injury, were associated with significant bleeding, thus, Dr. Cunningham believed they probably occurred while Ms. Conseulo was still alive.

4There is no issue that someone murdered Ms. Conseulo. Nor is there any issue that a reasonable jury could conclude that she was killed in the course of a sexual assault, making it a constructive first degree murder. The issue is who did it.

5The Crown’s case that Mr. Amin was the killer is circumstantial. Mr. Amin challenges his committal on the basis that the evidence is not sufficient for a jury to conclude that he was the killer.

6Defence counsel argues that, at best, the Crown evidence can place Mr. Amin in the victims’ building around the time of the murder. It cannot put him in her apartment. The evidence of motive is weak. And the potential after-the-fact conduct evidence is so equivocal that it is not capable of giving rise to an inculpatory inference. The Crown’s case adds up to opportunity and nothing more.

7The Crown reminds me that the evidence must be considered in totality, and points to six pieces of circumstantial evidence that, taken together, are reasonably capable of showing that Mr. Amin was the person with killed Ms. Conseulo.

The reasons for committal

8Justice Merenda concluded that, considering all the evidence at the preliminary inquiry, a reasonable jury, properly instructed, could return a verdict of guilty of first degree murder.

The test for committal

9While not always easy to apply, the test for committal is well-established. It was recently re-articulated by Justice Doherty on behalf of a unanimous Court of Appeal in R. v. Jackson, 2016 ONCA 736 in the context of a circumstantial case. I cannot improve on his words:

6 …A preliminary inquiry judge must decide whether a properly instructed jury, acting reasonably, could convict on the evidence adduced at the preliminary inquiry. If the evidence relied on by the Crown is circumstantial, the preliminary inquiry judge must weigh the evidence in a limited sense to determine whether the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence: Arcuri, at paras. 1, 29-30.

7 In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 (S.C.C.), at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769 (Ont. S.C.J.) [2008 CarswellOnt 1144 (Ont. S.C.J.)], at para. 31; and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370 (B.C. C.A.), at paras. 13-14.

8 If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.

The Test on an Application for Certiorari

10I have a very limited role on this application. I do not make my own assessment of the evidence. Rather I ask only whether there was any evidence at all upon which the preliminary inquiry justice could conclude that the test for committal had been met.

Application to this Case

11When the evidence is considered together as a whole, as it must, I find it provided a sufficient basis for the preliminary inquiry justice to conclude that the test for committal had been met. More specifically, it was open to the preliminary inquiry justice to conclude that the Crown lead evidence reasonably capable of supporting inferences of motive, opportunity and after-the-fact conduct. Considering this evidence together, a jury could conclude that Mr. Amin was the person who killed Ms. Conseulo.

Motive

12Jumar Lennon reluctantly testified that he told Mr. Amin that Ms. Conseulo infected him with gonorrhea. He believed she did this in December 2015. Mr. Amin was upset about this, and told Mr. Lennon that Ms. Conseulo had HIV. Mr. Lennon testified he only told Mr. Amin and one other about being infected with gonorrhea.

13After the killing, Mr. Amin told an undercover operative that Ms. Conseulo was having unprotected sex and spreading HIV, and she was killed because of that.

14Mr. Amin reiterated this on the undercover wires, and said that both “Jumes” (Jumar Lennon) and “Bucky” (Basil Chambers) contracted AIDS from Ms. Conseulo. Both men testified they did not have AIDS.

15None of Mr. Amin’s friends who testified at the preliminary inquiry believed that Ms. Conseulo had AIDS.

16Ms. Conseulo was not HIV positive, but she was infected with a sexually transmitted bacterial disease, such as chlamydia or gonorrhea or both.

17Ms. Conseulo was found lying on her back with her top on and her pants off. There were condoms still in their wrappers lying on top of her shirt and around her.

18I find that this evidence is reasonably capable of giving rise to the inference that Mr. Amin had a motive to kill Ms. Conseulo. Defence counsel argues that the evidence of motive is “weak”. But it was not for the preliminary inquiry judge, or me at this point, to weigh it beyond assessing whether it is capable of supporting the inference that Crown relies on it for. I find that it is capable of supporting this inference, and it was open to the preliminary inquiry judge to rely on it for this purpose.

Opportunity

19Ms. Conseulo was killed sometime between 12:55 am, when she was seen entering an elevator at 121 Kendleton Drive, and 4:40 am, January 30, 2016, when she was found dead in her apartment.

20The victim’s building at 121 Kendleton Drive is connected to buildings at 101 and 111 Kendleton Drive by a tunnel. There are approximately twelve surveillance cameras in each building. There are no cameras in the elevators or on any of the floors at 121 Kendleton Drive.

21A camera captured a man enter through the rear back door at 111 Kendleton Drive at 1:25 am on January 30, 2016. A camera in the tunnel connecting the three buildings at 121 Kendleton appeared to capture the back of the same man at 1:26 am. The man then entered an elevator at 121 Kendleton (the same one the deceased used approximately an hour earlier).

22A camera captured what appeared to be the same man coming down the west stairwell of 121 Kendleton Drive at 2:39 am, January 30, 2016.

23That man appeared to have the same body type, and appeared to be wearing clothing very similar to clothing that Mr. Amin was seen wearing about a week earlier, on January 24, 2016, specifically:

• grey sports or running shoes with white soles;

• jeans with a distinctive “seagull” design on the back pockets;

• a grey top extending below the jacket when seen from behind;

• a black leather jacket with a seam at chest level;

• a black toque with a small white pattern above the right ear.

24In addition, the man had a distinctive plaid scarf pulled up over his face that appeared the same or very similar to the plaid scarf the woman who was with Mr. Amin on January 24, 2016 was wearing when they were captured together on the surveillance video.

25When Mr. Amin was asked about this surveillance footage by the undercover operative, he admitted that he had been in the victim’s building on night of the murder, but claimed that he “blacked out”, “can’t really remember”, and “everything is a blur”.

26A jury could conclude from this evidence that Mr. Amin was the man who entered the back door of 111 Kendleton Drive at 1:25 am, and came down the stairs of 121 Kendleton Drive at 2:36 and thus was close to the crime scene at the time of the murder.

27Defence counsel does not take serious issue that this is the case, but argues that it is not helpful because it does not place Mr. Amin in Ms. Consuelo’s apartment. I disagree. This is evidence of opportunity. It may not mean anything on its own, but when combined with the evidence of motive and after-the-fact conduct, which I will come to, it is reasonably capable of supporting the inference that Mr. Amin was the killer. The preliminary inquiry judge was right to rely on it.

28The Crown also relies on the fact that a distinctive shoe print was found on Ms. Conseulo’s mattress. There is no evidence as to when that print was placed there, but a number of witnesses testified that Ms. Conseulo normally had a cover or sheet on her mattress. Herbert Hedges was qualified as an expert in identifying Nike products. He testified that the shoes worn by the man who entered the building at 1:25 am on January 30, 2016, were either Nike Roche or Nike Air Tanjun shoes. Edward Adache, a police officer working with the Forensic Identification Service of the Toronto police took an impression of the shoe print found on Ms. Conseulo’s mattress, and, by using transparencies and trial and error, came to believe it was made by a size 10 ½ or 11 Nike Air Roche shoe. However, there is no evidence as to Mr. Amin’s shoe size. Without this, even taking this evidence at highest, I cannot conclude that it provides additional circumstantial evidence of opportunity.

After the fact conduct

29The man shown entering the back door of 111 Kendleton Drive at 1:25 am, and coming down the stairs of 121 Kendleton Drive at 2:36, appears to be using his plaid scarf to cover his face. As noted, a jury could find that this was Mr. Amin. More specifically, the man appears to pull his scarf further up on his face just before he enters the complex. As he is coming down the stairs, the scarf appears to be pulled up over his entire face. The Crown argues that a jury could find that this man was deliberately covering his face with his scarf to avoid being identified on entry because he planned to kill Ms. Conseulo, and on exit because he had carried out that plan. The Crown also notes that when this man arrived at the elevator, he covered his hand with his coat when he pushed the elevator button. The Crown argues that a jury could infer that he did so in order to avoid leaving behind a finger print.

30Defence counsel argues that this evidence should be ignored because it is equally consistent with this man simply trying to avoid being identified because this is a high crime area and he may have been involved in some other crime. I disagree. The fact that there may be a benign explanation for this evidence is beside the point at this stage. As long as the evidence is reasonably capable of supporting the inference the Crown relies on it for, it properly formed part of the mix that could be considered by the preliminary inquiry justice. I find that this evidence is capable of giving rise to an inference of after-the-fact conduct, and it was open to the preliminary inquiry judge to consider it as potential circumstantial evidence pointing to Mr. Amin’s guilt.

31The Crown also relies on the fact that when confronted with the security footage from the night of the murder by the undercover operative, Mr. Amin acknowledged being in the building but said he had no memory and it was a blur. The Crown argues that this was a lie based on the footage showing the man the Crown claims to be Mr. Amin acting in very volitional ways (such as carefully pulling up his scarf to cover his face before entering the building). That may well be, but in order for that lie in itself to amount to independent evidence of guilt, there must be independent evidence establishing it as a lie (see e.g. R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont.C.A.) I do not see that other independent evidence, at least at this stage of the case. Like the preliminary inquiry judge, I place no weight on this statement beyond it providing some confirmation that Mr. Amin was in the building on the night of the murder.

32During the undercover operation, the undercover operative asked Mr. Amin about how to handle a “problem” woman. Mr. Amin suggested using “manpower” to jump on top of her and strangle her or cover her mouth and nose and keep them covered for a couple of minutes after the woman stopped moving. The Crown points out that this is consistent with how Ms. Conseulo was killed, and suggests this is a piece of circumstantial evidence pointing to Mr. Amin’s guilt. Even if the preliminary inquiry judge was wrong to rely on this evidence, there was still sufficient other evidence to justify the committal.

Conclusion

33When the evidence of motive, opportunity and after-the-fact conduct is considered together, as it is must be, I find that it provided a sufficient basis for the preliminary inquiry judge to conclude that the test for committal had been met. In other words, a jury considering this evidence in totality could conclude that Mr. Amin was the man who sexually assaulted and murdered Ms. Conseulo. As a result, the application for certiorari is dismissed.

Gillian Roberts, J.