Court File and Parties

COURT FILE NO.: CR-18-70000324-0000 DATE: 2019-03-19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – KADAH DEMATAS AND CHRISTOPHER LUCAS Defendants

COUNSEL: Monica Gharabaway, for the Crown Christian Pearce, for the Defendant, Kadah Dematas R. Joseph Louch, for the Defendant, Christopher Lucas

HEARD: March 14, 2019

B.A. ALLEN J.

REASONS FOR DECISION

(Motions for Directed Verdicts)

BACKGROUND

[1] Kadah Dematas and Christopher Lucas were arrested on 11 charges related to a home invasion and shooting of an occupant in an apartment which occurred in the early morning hours of December 31, 2016. The incident took place at 5 Wakunda Dr., Apt. 612, a residence located in a medium rise apartment building in a Toronto Community Housing Corporation complex which is also comprised of rows of townhouse units. Mr. Dematas was arrested on December 3, 2016, and Mr. Lucas, on February 28, 2017.

[2] The two accused are charged in relation to shooting the complainant Adam Cumings. They are jointly charged on an 11-count indictment with:

• count 1 attempted murder,
• count 2 discharge firearm with intent,
• count 3 aggravated assault,
• count 4 assault with a weapon,
• count 5 robbery with a firearm,
• count 6 use of firearm while committing indictable offence,
• count 7 unlawful possession of loaded restricted firearm without being holder of authorization or license permitting possession at that place;
• count 8 unlawful possession of a firearm without being the holder of a licence permitting possession
• count 9 unlawful possession of a loaded restricted firearm knowingly being without a licence, and
• count 10 careless use of fire

[3] Mr. Dematas and Mr. Lucas were also charged at count 11 with possession of a firearm knowing it was obtained through the commission of crime. The Crown seeks dismissals on that charge on the basis there is no reasonable prospect of conviction. I will grant acquittals on that charge.

The Motions for Directed Verdicts

[4] Both accused bring motions for directed verdicts and advance similar arguments on the evidence and the law applicable to directed verdicts and party liability.

[5] Counsel for Mr. Lucas advances the position that the court should order directed verdicts on all offences charged on the view that there is no evidence that Mr. Lucas was present in the apartment when the shooting occurred.

[6] Mr. Dematas seeks directed verdicts on count 1 (attempted murder), count 2 (discharge firearm with intent) count 3 (aggravated assault) and count 4 (assault with a weapon).

THE PERTINENT EVIDENCE

The Witnesses’ Evidence

[7] At approximately 12:55 a.m. three black males make their way to 5 Wakunda, Apt. 612. The apartment is a small bachelor unit with a small living room, a kitchen area and a bathroom. On entry one immediately faces the bathroom. Present in the apartment were Dave Ellison, the lessee of the apartment, his friend Ken Rogers and the complainant, Adam Cumings. Both Mr. Ellison and Mr. Rogers were in the living room watching television, one sitting on a couch and the other on a futon when the three males entered the apartment. Mr. Cumings had gone into the bathroom.

[8] One of the males who was dressed in a black and white track suit ordered Mr. Rogers to go to the couch and lay face down. Mr. Ellison confirmed that that male was wearing a black and white track suit. Mr. Ellison testified that male told him, “Don’t move. We’re not here to bump you. Don’t touch your phone.” Mr. Ellison had his cellphone right beside him and said his impression was that the male did not want him to call for help. Mr. Rogers said the male in the black and white track suit took his cellphone from him but returned it to him. Mr. Rogers said one of the other males, he did not know which one, told the male who stayed with him and Mr. Ellison to give his cellphone back and said that they were not after us.

[9] Both witnesses testified that the male in the black and white track suit continued to remain with them in the living room. Mr. Rogers said that male was carrying a firearm which he pointed at them and Mr. Ellison said he did not see that male’s hands or a firearm. Mr. Rogers heard two other voices. He saw a second male with short dread locks wearing a beige jacket, which Mr. Rogers described as a short bomber style jacket with a hood. Mr. Rogers heard but did not see the third male. Both witnesses testified the second and third males went toward the bathroom. Mr. Ellison did not get a look at the other two males.

[10] Mr. Rogers testified the males pushed the bathroom door open. He heard Mr. Cumings say, “No.” Both witnesses heard the males say, “Give me the money.” Mr. Cumings replied, “What money? I don’t know what you are talking about.” Immediately after the demand for money the witnesses heard one gunshot. The three men then ran together out of the apartment. The witnesses testified that the period of time between the entry into the apartment and departure was just a few minutes. The males took nothing from Mr. Ellison or Mr. Rogers.

Adam Cumings’ Evidence

[11] Mr. Cumings testified he was in the bathroom when the three males entered the apartment. He heard the knock on the door and heard Mr. Rogers answer the door. He heard commotion which made him open the bathroom door. He was seated on the toilet “doing his business.” He saw the three males rush into the apartment. He just heard their voices.

[12] Mr. Cumings testified the male at the bathroom door pointed a firearm at him. He could not see the man with the firearm because he was sitting on the toilet with his head down. All he could say is the male was black and had on a brown jacket and gloves. Mr. Cumings said the firearm was out and being pointed when the three males entered the apartment. The male with the brown jacket shouted in a rough tone, “Where is the money!”

[13] The male pointed the nozzle of the gun at Mr. Cumings’ forehead and poked him on the forehead three times with the nozzle of the gun. When Mr. Cumings said he did not have the money, the male asked repeatedly where the money is. Mr. Cumings testified he grabbed the nozzle of the firearm after the third hit pulling it down towards his neck. That is when the firearm discharged on the side of his neck. Mr. Cumings said there was one loud sound and his legs went numb. He could not get up. Seconds later the males fled without taking anything from Mr. Cumings. He could not provide descriptions of any of the males.

[14] Mr. Rogers called 911. Mr. Cumings was admitted to Sunnybrook Hospital where he remained for 18 days. His medical records reveal that he underwent surgery for an injury to his neck. The bullet remains lodged in his upper back.

The Surveillance

5 Wakunda Dr.

[15] The investigation in part involved Toronto Police reviewing surveillance of the Wakunda housing complex to observe the movements of persons thought to be suspects in the shooting at 5 Wakunda, Apt. 612. The surveillance obtained for the investigation covered the period from about 12:30 a.m. to 4:00 a.m. on December 31, 2016.

[16] The building at 5 Wakunda Dr. has 11 storeys and is located on the southeast corner of the complex. The building contains a front entrance and stairwell exits on the north and south sides of the building. There is no rear entrance or exit. Entering the building through the side doors requires climbing steps to the second floor. From the second floor one looks down on a courtyard. On the second floor a deck runs the length of the courtyard. There are two side-by-side elevators on the second floor. Apartment 612 is one apartment away from the south stairwell on the sixth floor.

Entry into 5 Wakunda

[17] Select portions of surveillance were copied to DVDs. One DVD, focussing on 5 Wakunda, covers the period from about 12:45 a.m. to 1:15 a.m. The DVD was turned over to Officer Ghazarian. Officer Ghazarian did not receive briefing on the shooting at the police station until 5:50 p.m. on December 31, 2016. He was advised that three black males were seen entering 5 Wakunda and fleeing from an exit from 7 Wakunda who were thought to have been involved in the shooting. It was with that information that Officer Ghazarian undertook his task of reviewing the surveillance and noting his observations.

[18] Officer Ghazarian gave evidence about what he observed when he reviewed the surveillance. The first observation of note captures a vehicle at the curb on a road just east of 5 Wakunda. At about 12:50 a.m. five black male occupants of the vehicle exit onto the road.

[19] Seconds later one of the males wearing a grey Roots track suit, walks south along the walkway leading to the north stairwell entrance to 5 Wakunda. Mr. Lucas admits that he is that male. A few seconds later a black male wearing a maroon jacket follows Mr. Lucas into the north stairwell entrance. After several further seconds, a third black male wearing a black and white track suit also enters the north stairwell entrance. The remaining two males walk north away from 5 Wakunda and leave the view of the camera.

[20] The three males who entered the north stairwell entrance are seen next on a walkway that leads to the second floor entrance to 5 Wakunda. Mr. Lucas is the first male who enters the walkway and is wearing a grey track suit, carrying a cellphone and a blue satchel over his left shoulder. Seconds later the other two males enter the walkway.

[21] The males next walk towards the second storey entrance. Inside that door is a hallway that leads to the left to the south stairwell to the second floor apartment units. The door is locked. Mr. Lucas is the first to walk toward the door at about 12:50:47 a.m. He apparently uses a key fob to open the door and uses his sleeve on the handle to open the door. Mr. Lucas enters alone and the door closes behind him. At about 12:51:27 a.m. the other two males walk to the door and wait outside the entrance apparently without a key fob to enter. One of the males appears to be using a cellphone. There is a lag in time as the two males try to open the door. At about 12:53:53 the other two males are let into the entrance by an unknown person.

Exit from 5 Wakunda

[22] At about 1:11:18 the surveillance captures the three males, who entered the second storey, leave from the ground floor through the south stairwell exit of 7 Wakunda. At about 1:11:30 a.m. the three males are captured running west away from 5 Wakunda. The three males were Mr. Lucas, the second male, and the male in the black and white track suit.

[23] At about 1:11:39 the surveillance next captures the parking lot of 9 Wakunda. The three males run along a walkway through a parking lot southeast of 5 Wakunda. They jump a fence and move toward a townhouse complex east of 5 Wakunda.

30 and 32 Wakunda Place

[24] At about 1:14:38 a.m., the three men are seen running along a sidewalk that leads to the inside courtyard of 30 – 32 Wakunda Place. At about 1:15:50 a.m. a male is captured at a dumpster and appears to remove a satchel from his side. He then walks away from the dumpster. The three males enter the front entrance of 32 Wakunda, unit 08 at about 1:16:41 a.m. and leave at about 1:53:47 a.m.

Items Seized on Search of 5 Wakunda, the Dumpster and 30 Wakunda

[25] At about 1:16 a.m. a search warrant was executed on 5 Wakunda, Apt. 612. Officer Catenaccio located a firearm magazine on the floor of Apt. 612 just before the bathroom. He found seven live bullets in the magazine.

[26] Officer Weber was detailed to search the dumpster located between 20 and 30 Wakunda, the dumpster where a male had been seen earlier. The officer found a black Nike brand shoulder bag with the white Nike “swoosh” on it. In the shoulder bag the officer located a black Blue Line Solution 22 calibre handgun with brown accents on the handle. The magazine chamber was empty. There was also a 22-calibre spent cartridge casing in the black shoulder bag.

[27] Officer Hoffman testified as an expert on the classification, identification and functioning of firearms and ammunition. He testified the firearm was comprised of a combination of a metal pellet or airsoft firearm and a 22-calibre Blue Line Solutions firearm. The firearm was constructed to fire as a semi-automatic gun where with every pull of the trigger a bullet should discharge. Officer Hoffman tested the firearm and found that the bullets jammed after each pull of the trigger meaning that the firearm functioned only as a single-shot gun. Officer Hoffman testified the ammunition seized is compatible with the firearm.

[28] Officer Hoffman explained that there are two ways to discharge the firearm. One way is to hold the firearm with one hand and use the other hand to pull the slide lock. The other method is to hold the firearm with one hand and use the thumb on that hand to release the slide with a release button near the handle and use the index finger on the same hand to pull the trigger.

[29] At about 6:20 p.m., a search warrant was executed on 30 and 32 Wakunda. No items of evidentiary value were found at 32 Wakunda. Important evidence was seized from 30 Wakunda.

[30] The items seized from an upstairs bedroom closet were a pair of dark jeans, a Blue Jays t-shirt and a Ziploc baggie containing 20 rounds of unspent 22-calibre ammunition. A green garbage bag tied with a tight knot was also located in the closet. It contained a grey Roots brand hoodie sweat shirt and grey Roots track pants, a black and white Crooks and Castle brand top and pants of a track suit.

Forensics

DNA

[31] On March 18, 2018, DNA warrants were executed on Mr. Lucas and Mr. Dematas. Officer Wu took blood samples from the two accused. The samples were transferred to the Centre for Forensic Services (“the CFS”) for DNA analysis.

[32] Sarah Johnston from the CFS testified as an expert on body fluid identification and DNA analysis and interpretation. She performed analyses on the black and white Crooks and Castle hooded sweater, a blue t-shirt, a grey hooded sweater, jeans and grey jogging pants. Blood containing male DNA was detected on each of those items.

[33] Tests on areas of the black and white Crooks and Castle sweater revealed the presence of blood. DNA analysis established that Mr. Dematas was the major donor of the DNA and that the probability that a randomly selected individual unrelated to him would share the DNA is 1 in 47 quadrillion. Mr. Dematas also could not be excluded as a major donor of DNA taken from the back collar of the black and white Crooks and Castle sweater.

[34] Tests on the grey Roots sweat shirt revealed blood on that garment. DNA analysis established that Mr. Lucas was the major donor of the DNA and that the probability that a randomly selected individual unrelated to him would share the DNA is 1 in 1 quadrillion. A test was also done on the inner waist band of the grey Roots jogging pants and Mr. Lucas could not be excluded as the major donor.

[35] DNA tests were also performed on the gun slide on the firearm, the handle and on the top of the magazine. There was insufficient DNA on the top of the magazine.

[36] A swab was taken of a brown chunk of substance on the front of the slide. It tested as a having a single source donor. Mr. Cumings could not be excluded as the donor. The DNA was uploaded to a DNA database and the result came back as a match with Mr. Cumings. The result of the analysis of the DNA on the handle of the firearm was that Mr. Dematas could not be excluded as the donor.

Gunshot Residue

[37] Elspeth Lindsay testified as an expert on gunshot residue (“GSR”) analysis. GSR consists of particles of metal and metal compounds undetectable by the naked eye emitted when a firearm is discharged. The residue must contain each of the three elements, lead, barium and antimony, which elements come mainly from ammunition primers. One particle is sufficient for analysis.

[38] GSR can be found on the person who fired the firearm, on persons in close proximity when the firearm is discharged and on persons who make contact with an object bearing GSR. GSR can also be located on an object that makes contact with another object that contains GSR. In Ms. Lindsay’s opinion, the presence of GSR therefore does not necessarily mean that a person with GSR on them discharged the firearm.

[39] Ms. Lindsay tested the following items: the black and white Crooks and Castle hooded sweater, a blue Toronto Blue Jays t-shirt, a grey Roots hooded sweater and a pair of grey Roots jogging pants. The tests are performed by using tape to lift samples from the items. No GSR was found on the black and white Crooks and Castle hooded sweat shirt. GSR was found on the Blue Jays t-shirt, the grey Roots hooded sweater, the grey Roots jogging pants and the Levis blue jeans.

THE LAW ON DIRECTED VERDICTS

[40] A directed verdict is a motion brought by the defence at the close of the Crown’s case but before the defence calls any evidence. The disposition sought on such a motion is a dismissal of the case on the basis that the essential elements of an offence have not been made out.

[41] The test to be met to obtain a directed verdict is the same as that which must be satisfied on a preliminary inquiry to achieve a committal for trial.

[42] The test to be applied for a directed verdict is whether or not there is any evidence, direct or indirect, upon which a jury, properly instructed, could reasonably convict: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21. Earlier, the Supreme Court of Canada held there must be no evidence of an essential element of the offence charged upon which a jury properly charged and acting reasonably could find the accused guilty: United States of America v. Shephard, [1977] 2 S.C.R. 1067.

[43] The following further principles also provide guidance:

• Where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty: R. v. Arcuri, at para. 23.
• The judge must 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: R. v. Arcuri, at para. 23.
• The task of the limited weighing never requires consideration of the inherent reliability of evidence itself. It should be regarded instead as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence: R. v. Arcuri, at para. 30.
• Where more than one inference could be drawn from the evidence, only the inferences that favour the Crown are to be considered. The Crown’s case must be accepted at its highest: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 268, at para. 18.
• The judge does not draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, at para. 23.
• The judge must consider “the whole of the evidence”, in the sense that they must consider whether the evidence, if believed, could reasonably support a finding of guilt: Arcuri, at para. 23.
• In order to meet the test set out in Shephard, the Crown must adduce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden: R. v. Charemski, [1998] 1 S.C.R. 679, at para. 3.

SHOULD DIRECTED VERDICTS BE ENTERED ON ALL CHARGES AGAINST CHRISTOPHER LUCAS?

The Defence Position

[44] The defence for Christopher Lucas takes the position that a directed verdict should be entered in relation to Mr. Lucas on all charges on the indictment.

[45] Mr. Lucas admits he is the black male observed on the surveillance video wearing the grey Roots hooded sweat shirt and track pants. Counsel for Mr. Lucas contends however that there is no evidence to establish the primary essential element that Mr. Lucas was one the persons involved in the shooting incident. That is, there is no evidence that supports the Crown’s position that Mr. Lucas was one of the males who was present at 5 Wakunda, Apt. 612 at the time of the shooting.

[46] There are competing inferences that could be drawn from the fact situation.

[47] The defence argues there is evidence from which the inference could be drawn that Mr. Lucas was not in Apt. 612 when the crime was committed.

[48] The defence relies on the fact that none of Mr. Ellison, Mr. Rogers or Mr. Cumings describes any of the three males who entered the apartment as wearing a grey Roots track suit. One of the males is said by Mr. Ellison and Mr. Rogers to have been wearing a black and white track suit and the other as wearing a brown or beige jacket. There is no clothing description for the third male. Mr. Cumings could only say the male who shot him wore a brown jacket.

[49] The defence also relies on time factors related to the movements on the surveillance of the three males seen entering 5 Wakunda. The defence points to the fact that Mr. Lucas is seen departing the company of the other four occupants of the vehicle. Mr. Lucas is seen to be the first to walk up the walkway towards the entrance to 5 Wakunda. The other two males, one in a maroon jacket and the other in the black and white track suit, enter the door close in time after Mr. Lucas.

[50] The defence relies on a lag in time between Mr. Lucas entering the second storey entrance to 5 Wakunda and the other two males entering and the fact Mr. Lucas was separated from the other two males for a period of time.

[51] Mr. Lucas is the first to enter the walkway to that door. It is a locked door and Mr. Lucas seems to open the door with a fob key. He did not wait for the other two males. The other males arrive seconds later and try to open the door and have to wait for an unidentified person to open the door for them. There is a lag in time of about two minutes from the time Mr. Lucas reaches the door and enters and the other two males enter the door.

[52] According to the defence, from the lag in time together with there being no evidence of Mr. Lucas being in Apt. 612 during the shooting, a reasonable inference can be drawn that Mr. Lucas parted ways with the other two men after he entered the door. It is the defence’s view that the fact that Mr. Lucas is seen together with the other two males running out does not establish he was at the scene of the shooting.

[53] Regarding the GSR found on the grey hooded Roots sweat shirt and grey Roots sweat pants the defence relies on the expert opinion that GSR residue on one item can be transferred to another item by contact with the item that contains GSR. The inference that the defence seeks the court to draw is that another piece of clothing could have transferred the GSR to the grey track suit. This means on the defence’s argument that the presence of GSR on the grey track suit does not go to establish that Mr. Lucas was the shooter or near the shooter during the incident.

The Crown’s Position

[54] The Crown asks the court to draw from the circumstantial evidence that Mr. Lucas was one of the three men involved in the shooting incident. The Crown cites a number of inferences that in the Crown’s view can be reasonably drawn from the evidence and upon which a reasonable jury properly instructed could return a verdict of guilty. The Crown relies on the following evidence:

• Mr. Lucas, after leaving the vehicle at about 12:50 a.m., enters 5 Wakunda followed by the other two males;
• when Mr. Lucas enters the door to the second floor of 5 Wakunda he uses his sleeve to open the door inferring Mr. Lucas does not want to leave fingerprints;
• about 1:11 a.m., Mr. Lucas is running out of the south stairway exit with the other two males minutes after the shooting;
• at about 1:16 a.m. a male is captured at a dumpster and appears to remove a satchel from his side and leaves the dumpster;
• about 1:13 a.m. Mr. Lucas and the other two males are running together through the parking lot of 40 Wakunda;
• about 1:14 a.m. Mr. Lucas and the other two males enter the front entrance of 32 Wakunda, unit 08;
• about 1:53 a.m. Mr. Lucas and the other two males exit the front entrance of 32 Wakunda, unit 08;
• during a search of 32 Wakunda, unit 08 the police seized a green garbage bag that contained a Roots hooded sweat shirt and grey Roots track pants and a black and white Crooks and Castle top and pants of a track suit, the clothing description of what Mr. Lucas and one of the other male was wearing;
• expert evidence shows DNA on the grey hooded sweat shirt and track pants is such that Mr. Lucas cannot be excluded as the DNA donor;
• expert analysis shows GSR on the grey Roots hooded sweater and the grey Roots jogging pants from which it could reasonably be inferred that Mr. Lucas was present during the shooting.

Conclusion

[55] It is well established that on a motion for a directed verdict the court is permitted to do a limited weighing of the inferences, where there are competing inferences, to determine the reasonableness of the inferences to be drawn from the circumstantial evidence. The limited weighing of the evidence must be restricted to assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. Where more than one inference can be drawn from the evidence, only the reasonable inferences that favour the Crown are to be considered and the Crown’s case must be accepted at its highest.

[56] I accept the inferences advanced by the Crown over those cited by the defence. The Crown has set out circumstantial evidence from which a reasonable inference of guilt could be drawn. On the totality of the evidence taken at its highest, both direct and circumstantial as outlined by the Crown in its argument, I find it could be reasonably inferred that Mr. Lucas was one of the three men who invaded Mr. Ellison’s apartment at around 12:55 a.m. on December 31, 2016.

PARTIES TO AN OFFENCE

[57] Mr. Dematas and Mr. Lucas are jointly charged on all counts on the indictment. Under s. 21(1) of the Criminal Code a person is a party to an offence if they actually commit it, does or omits to do anything for the purpose of aiding any person to commit it, or abets (counsels) any person in committing it.

[58] Section 21(2) provides that two or more persons can be jointly liable as parties to an offence where they form a common intention to carry out an unlawful purpose and assist each other in carrying out the common purpose and each of them knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose.

[59] It has long been held that to constitute a principal in a crime mere presence at the crime is not enough. There must be a common purpose, an intent to aid or encourage the persons who commit the crime and engage in either an actual aiding or encouraging or a readiness to aid and encourage them: Preston v. The King, [1949] S.C.R. 156; R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881, at para. 9.

[60] The Crown takes the position that neither Mr. Lucas nor Mr. Dematas was merely present in the apartment. The Crown posits that it could reasonably be inferred from the evidence that the three males had a common purpose to commit an offence at gunpoint when they entered the apartment.

[61] Counsel for Mr. Lucas, who takes the position Mr. Lucas was not present, and counsel for Mr. Dematas, contend Mr. Lucas and Mr. Dematas did not have a common purpose with each other and the male in the brown jacket to commit a crime.

[62] I agree with the Crown’s position.

[63] I accept the Crown’s position that it could reasonably be inferred from the words and actions of the three men before and after entering the apartment that they had a common intention, a common plan to commit an offence.

[64] The male in the black and white track suit, who the Crown says was Mr. Dematas, did not join the two other males at the bathroom door. He remained in the living room area to guard Mr. Ellison and Mr. Rogers. He stayed with them to make sure they did not call for help. It could be inferred that he gave them orders that in effect assisted the other males to execute their common purpose of getting money from Mr. Cumings by preventing Mr. Rogers and Mr. Ellison from interfering with the crime in progress.

[65] The male in the black and white track suit told Mr. Ellison not to touch his cellphone which Mr. Ellison said gave him the impression that the male did not want him to call for help. He told Mr. Ellison, “Don’t move. We’re not here to bump you. Don’t touch your phone.” It could be reasonably inferred from the words of the man in the black and white track suit that he knew why the three of them had pushed into the apartment.

[66] The male in the black and white track suit also told Mr. Rogers to lie on the couch face down and told him not to move. He took Mr. Rogers’ cellphone from him and returned it after one of the other two intruders ordered him to give the cellphone back. It could be reasonably inferred from the other male’s words that they were not after them, that he knew why they were at the apartment.

[67] The Crown pointed to another area of circumstantial evidence from which the Crown argues a common purpose could be inferred. Mr. Cumings and Mr. Rogers testified a firearm was carried into the apartment being pointed by the carrier. Mr. Rogers testified the male in the black and white track suit was pointing a firearm and Mr. Cumings said the male in the brown jacket was pointing a firearm when he came to the bathroom door.

[68] A common purpose to commit a crime could be reasonably inferred from the firearm being in plain view of the other intruders when they entered and they did nothing to deter the carrier of the firearm. From that evidence it could be inferred that each of the males knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose.

[69] I conclude there is circumstantial evidence from which a reasonable jury properly instructed could find the three males who invaded Mr. Ellison’s apartment had a common purpose to commit a crime.

SHOULD DIRECTED VERDICTS BE ORDERED ON ANY OTHER CHARGES?

Law on Crimes of Specific Intent

[70] Attempted murder and discharge firearm with intent are crimes of specific intent. The Supreme Court of Canada in R. v. Tatton addresses the unique mental element in specific intent offences:

[S]pecific intent offences involve a heightened mental element. In Daviault, Sopinka J. limited his discussion of specific intent offences to crimes involving an ulterior purpose. For such crimes, the accused must not only intend to do the act that constitutes the actus reus, he must also act with an ulterior purpose in mind: Manning and Sankoff, at p. 386. For example, assault with intent to resist arrest is an offence containing an ulterior purpose. The accused must not only commit the assault, he must also act with the ulterior purpose of resisting arrest. It is irrelevant whether he actually succeeds in resisting arrest; the offence simply requires that he act with that purpose in mind.

(R. v. Tatton, 2015 SCC 33, [2015] 2 S.C.R. 574, at para. 37)

[71] On the charge of attempted murder there must be evidence that the accused acted with the ulterior motive to kill the complainant. With discharge firearm with intent there must be evidence that the accused had the ulterior purpose to injure the complainant.

Attempted Murder

The Law

[72] Section 239 of the Criminal Code provides every person who attempts by any means to commit murder is guilty of an indictable offence. Section 24 provides that a person can be found guilty of an attempt if, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention. This is the case whether or not it was factually possible to commit the offence. The acts of the accused must go beyond mere preparation to commit the offence.

[73] Attempt is in itself an offence separate and distinct from the crime alleged to be attempted. The Crown must prove a mens rea, that is, the intent to commit the offence in question and the actus reus, that is, some step towards the commission of the offence attempted going beyond mere acts of preparation. Of the two elements the more significant is the mens rea: R. v. Ancio, [1984] 1 S.C.R. 225, at para. 30.

[74] As a specific intent offence to prove attempted murder the accused must have had a specific intent to kill. As decided in Ancio:

The mens rea for attempted murder is, in my view, the specific intent to kill. A mental state falling short of that level may well lead to conviction for other offences, for example, one or other of the various aggravated assaults, but not to a conviction for an attempt at murder.

(R. v. Ancio, at para. 37)

Analysis

[75] Defence counsel argues there is no evidence direct or circumstantial that a reasonable jury properly instructed could reasonably convict for attempted murder. In particular, in the defence’s view, there is no evidence of an ulterior intent to kill Mr. Cumings. There is an absence of evidence of the mens rea or the intent required for a conviction on attempted murder.

[76] The sole account of the shooting comes through the evidence of Mr. Cumings. His evidence is that the male in the brown jacket who came to the bathroom door repeatedly asked him for money, asked him where the money is. When Mr. Cumings responded that he did not know what the male was talking about the man grew increasingly frustrated and hit Mr. Cumings on his forehead three times with the nozzle of the gun.

[77] It was at that point that Mr. Cumings grabbed the nozzle of the gun and pulled it down towards his neck away from his head. The firearm discharged firing a bullet into Mr. Cumings’ neck. There is no evidence on how it was that the firearm discharged, whether as a result of Mr. Cumings’ actions or the shooter’s actions or both. Mr. Cumings testified the incident was quick lasting only a few minutes.

[78] The Crown’s position is that the three males burst into the apartment, at least one of the males pointing a gun. Two of the men rushed to the bathroom where Mr. Cumings was and began shouting angrily at him to give them the money. Then the male with the firearm hit Mr. Cumings with the nozzle.

[79] The Crown argues that the specific intent to kill Mr. Cumings could reasonably be inferred from the actions of the three males and the reaction of the male with the gun to Mr. Cumings’ refusal to hand over some money. The Crown contends that the inferences it seeks to rely on are supported by the evidence. From the dynamics of the situation leading up to the shooting the Crown argues an intend to kill could reasonably be inferred.

[80] I accept the defence’s position.

[81] Intent is the critical element in the crime of attempted murder. An absence of direct or circumstantial evidence from which a specific intent to kill could be inferred cannot reasonably support a conviction for that offence. Any mental state short of that will not lead to a conviction for attempted murder.

[82] Applied to the case before me, the male with the firearm would have had to display a mental state indicative of an intention to kill Mr. Cumings. The reality is the intention that could reasonably be inferred from the evidence is that when the intruders rushed into the apartment they planned to rob Mr. Cumings at gun point. Their words express that intention.

[83] In the result, I enter directed verdicts of not guilty on the charge of attempted murder in relation to both Kadah Dematas and Christopher Lucas.

Discharge Firearm with Intent

[84] The mens rea of discharge firearm with intent requires a specific intent to wound or harm. Section 244 of the Criminal Code provides in its relevant part that every person who with intent to wound, maim or disfigure any person or to endanger the life of any person discharges a firearm at any person is guilty of an indictable offence.

[85] The essential elements of the offence for which the Crown must adduce some evidence, direct or circumstantial, from which a reasonable jury properly instructed might reasonably find guilt are: evidence that the accused intended to wound the complainant and evidence of a wound that the complainant sustained. Again, the sole account of the shooting comes through the evidence of Mr. Cumings. The evidence to be drawn from to assess the shooter’s intent is purely circumstantial.

[86] The defence takes the position that there is no direct or circumstantial evidence to support an inference of guilt. The defence cites as instructive a Manitoba Court of Appeal decision, which cites an Ontario Court of Appeal decision R. v. Connop (1949), which held that it is not sufficient to have an intention to threaten, scare or frighten someone, nor is it sufficient to objectively foresee that there is a risk of harm: R. v. Foti, 2002 MBCA 122, at para. 24.

[87] As discussed earlier, the court is permitted to do a limited weighing of the inferences, where there are competing inferences, to determine the reasonableness of the inferences to be drawn from the circumstantial evidence. The limited weighing of the evidence must be restricted to assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. Where more than one inference could be drawn from the evidence only the reasonable inferences that favour the Crown are to be considered and the Crown’s case must be taken at its highest.

[88] There are competing inferences − that the shooter purposely discharged the firearm injuring Mr. Cumings and that the shooter discharged the firearm accidently injuring Mr. Cumings perhaps as a result of Mr. Cumings pulling the nozzle down. I am required to consider only the inferences that favour the Crown.

[89] The Crown also cites R. v. Foti for the proposition:

In determining whether an accused has formed the requisite intention to wound, the trier of fact will often have to infer such intention from circumstantial evidence. In doing so, it is acceptable for the trier of fact to consider that a person generally intends the natural consequences of his actions.

(R. v. Foti, at para. 25)

[90] Mr. Cumings’ medical records reveal he sustained an injury to his neck requiring surgery resulting in an 18-day hospitalization. There is no dispute about that.

[91] For the following reasons, I accept the Crown’s position taken at its highest that considering the totality of the evidence, there is circumstantial evidence from which it could be reasonably inferred that the shooter discharged the firearm with intent to injure Mr. Cumings.

[92] The three males burst into the apartment unexpectedly with a firearm drawn. Two of the males rushed toward the bathroom where Mr. Cumings was and shouted at him repeatedly to give them the money. The shooter got increasingly agitated with Mr. Cumings’ failure to meet their demand so much so that he struck Mr. Cumings on the head three times with the nozzle of the firearm. It could be reasonably inferred from the state of the shooter’s anger that the shooter intended the next thing that occurred, the discharge of the firearm which lead to Mr. Cumings’ injury.

[93] In the result, I do not enter directed verdicts in relation to Kadah Dematas and Christopher Lucas on the charge of discharge firearm with intent.

Law on Crimes of General Intent

[94] Aggravated assault and assault with a weapon are crimes of general intent. The mens rea requirement for such crimes involves a lesser degree of thought and reasoning than crimes of specific intent. The Supreme Court of Canada provides some clarity on crimes of general intent:

For general intent crimes, the mental element simply relates to the performance of an illegal act. Such crimes do not require an intent to bring about certain consequences that are external to the actus reus: Bernard, at p. 863; George, at p. 877 (per Fauteux J.). Assault is a classic example. The accused must intentionally apply force; however, there is no requirement that he intend to cause injury. Likewise, crimes of general intent do not require actual knowledge of certain circumstances or consequences, to the extent that such knowledge is the product of complex thought and reasoning processes. In each instance, the mental element is straightforward and requires little mental acuity.

(R. v. Tatton, at para. 35)

Aggravated Assault

[95] Section 268 provides everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. Under s. 265 a person commits an assault when that person without the consent of another person, applies force intentionally to that other person, directly or indirectly.

[96] The mens rea of aggravated assault is objective foresight of bodily harm and does not require proof of an intent to harm. The mens rea for aggravated assault is the mens rea for assault plus objective foresight of the risk of bodily harm. An aspect of the actus reus is the endangerment of the complainant’s life. The mens rea and actus reus must coincide: R. v. Godin, [1994] 2 S.C.R. 484 and R. v. Williams (2003), 2003 SCC 41, [2003] 2 S.C.R. 134. The offence of aggravated assault is made out where the accused endangered the life of the complainant and intentionally applied force without the complainant’s consent: [R. v. Curriere, [1995] 2 S.C.R. 371 (S.C.C.)].

[97] There is no dispute that Mr. Cumings was seriously injured and that force was applied by a firearm. There is no evidence Mr. Cumings consented to the force. Mr. Cumings’ evidence is that the man in the brown or beige jacket shot him. The question is whether reasonable inferences could be drawn with respect to the mens rea and actus reus of the offence.

[98] Looking at the evidence as a whole I find there is evidence both direct and circumstantial from which reasonable inferences could be drawn that the shooter intentionally applied force to Mr. Cumings with the firearm and that it would be objectively foreseeable by the shooter that bodily harm would come to Mr. Cumings as a consequence of using a loaded firearm. The shooter need not have intended to harm Mr. Cumings.

[99] In the result, I do not enter directed verdicts on the charge of aggravated assault in respect to both Kadah Dematas and Christopher Lucas.

Assault with a Weapon

[100] Under s. 267 of the Criminal Code a person who in committing an assault carries or uses a weapon and causes bodily harm to the complainant is guilty of an indictable offence.

[101] The Ontario Court of appeal in R. v. Richard (1992), 72 C.C.C. (3d) 349 holds that provided the instrument used by the accused in the course of the assault falls within the definition of weapon, then the offence is made out. It is not required that the weapon also caused injuries to the complainant.

[102] There is no dispute that the instrument used by the male in the brown or beige jacket was a weapon as defined under the Criminal Code. Mr. Cumings’ evidence is that the shooter carried a loaded firearm to the bathroom, pointed it at him, struck him in the forehead with it and discharged a bullet into Mr. Cumings’ neck injuring him.

[103] As the Crown contends there is evidence both direct and circumstantial from which reasonable inferences could be drawn that the shooter intentionally applied force to Mr. Cumings with a weapon without Mr. Cumings’ consent.

[104] In the result, I do not enter directed verdicts on assault with a weapon with respect to Kadah Dematas and Christopher Lucas.

DISPOSITION

[105] I enter directed verdicts on count 1 on the indictment and acquit Kadah Dematas and Christopher Lucas of attempted murder and acquittals will be entered accordingly.

[106] I dismiss the charge at count 11 on the indictment and acquit Kadah Dematas and Christopher Lucas of possession of a firearm knowing it was obtained by crime and acquittals will be entered accordingly.

Allen J. Released: March 19, 2019