Court File and Parties
Court File No.: CR-18-50000107 Date: 2019-06-04 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Shakiyl Shaw, Applicant
Before: Clark J.
Counsel: David Tice and Michael Coristine, for the Crown Dirk Derstine, for the Defendant Shakiyl Shaw
Heard: May 10, 2019
Application re: Directed Verdict Reasons for Decision
Introduction
[1] On October 16, 2016, Jarryl Hagley was shot to death in a Pizza Pizza restaurant on Weston Rd, in Toronto. There were two assailants, one armed with a shotgun, the other with a 9 mm. pistol. Hagley was struck in the chest by a blast from the shotgun.
[2] The accused, Shakiyl Shaw (“Shaw”), his twin brother, Lenneil, and Mohamed Ali-Nur, are presently on trial on a charge of first-degree murder in relation to the homicide. On May 10, 2019, at the close of the Crown’s case, Shaw applied for a directed verdict of acquittal on murder, leaving the jury to deliberate respecting the offence manslaughter. I dismissed the application orally, indicating that I would give reasons as soon as time might permit; these are those reasons.
The Evidence
[3] On October 16, 2016, the three accused and one Winston Poyser were drinking and taking drugs in the basement of a townhouse situate at 1 Shendale Dr., in Toronto. Poyser said that, a number of times he and Shaw, along with a woman who was present, left to get more liquor and drugs. Poyser says that Shaw drove because he, Poyser, was too drunk to drive. He says that on one trip, while returning to the townhouse, they passed by a housing complex at Scarlettwood Ct. and saw what Poyser described as “a heavy police presence”. The Shaw twins lived at that complex at that time. The presence of the police generated what Poyser called a “shocked conversation”, but Poyser claimed he could not recall the substance of what was said.
[4] When Poyser, Shaw, and the woman returned to the townhouse, there was further conversation in the basement concerning what they had seen at Scarlettwood and Poyser said that the twins were “troubled.” Again, Poyser professed that he could not recall what was said, but he observed Lenneil Shaw retrieve a backpack from which he extracted a shotgun and a 9 mm. pistol. Lenneil Shaw handed the pistol to Mohamed Ali-Nur. Poyser said that, when he saw the guns, his focus was on them, such that he could not say exactly where Shaw was at that time.
[5] Poyser said that he offered the Shaws a ride home. He said that he, the Shaw twins and Ali-Nur then left the premises and boarded Poyser’s car. Once again, Shaw drove. Poyser said that his intention was to have Shaw drive himself and his brother home to Scarlettwood, at which point, after dropping them off, Poyser would drive himself home. Poyser said that he did not see the guns at the time he and the others left the house.
[6] Shaw did not drive to Scarlettwood, however. The route he did take involved him driving, inter alia, on Lawrence Ave. and then turning onto Weston Rd. Driving southeast on Weston Rd., they passed a Pizza Pizza outlet, at which point, according to Poyser, Ali-Nur said “There’s Jarryl.” At that point, Shaw circled around the block (in which he Pizza Pizza was situate) several times, stopping at various points in what Poyser described as “a touch and go” fashion. Yet again, Poyser claimed not to recall what conversation there was in the car.
[7] Although it would appear from Exhibit 30, which shows Weston Rd., that Shaw could have parked the vehicle on Weston Rd., he eventually drove the vehicle to a parking lot behind a building a block or so away from the Pizza Pizza.
[8] Once parked, Poyser said, Lenneil Shaw and Ali-Nur got out of the car. Lenneil Shaw then told him to get out and he did. He said he was unaware whether Lenneil Shaw and Ali-Nur took anything with them when they got out of the car and he did not know they had guns with them.
[9] Poyser said that he walked behind the two men in a southeasterly direction on Weston Rd. He said he was intoxicated and that the others were walking more quickly than he was.
[10] The men then crossed the street toward the Pizza Pizza. Poyser said that he saw Ali-Nur had a gun in his hand as he approached the Pizza Pizza, but he “wasn’t brandishing it or doing anything crazy”. He said he never saw Lenneil Shaw carrying anything either to or away from the Pizza Pizza.
[11] Poyser said in examination-in-chief that he observed Lenneil Shaw open the door to the Pizza Pizza at a point when he, Poyser, was in the middle of the street. He said that Ali-Nur was directly behind Lenneil Shaw. While he initially said he did not see anything after that, because his vision was impaired by a bus, in cross-examination Poyser acknowledged that the CCTV footage seized by the police showed that he had fully crossed the street and was standing outside the entrance to the Pizza Pizza, close to the person with the shotgun.
[12] Poyser said that he heard gunshots and, immediately thereafter, Lenneil Shaw and Ali-Nur “bolted” past him, running in a northwesterly direction along Weston Rd., back toward where the car was parked. Poyser said he followed them, but they began to get further away from him.
[13] Exhibit 30 shows the three men with their hoods up and their heads bent downward as they go southbound on Weston Rd., approaching the Pizza Pizza, and also shows them running back northbound, all three of them with their hoods still in place and two of them holding their heads down.
[14] There is evidence that, immediately the two gunmen entered the Pizza Pizza, the person with the shotgun shot Hagley.
[15] During the time the three men were gone from the parking lot, the CCTV footage reveals that Shaw turned the car around, backing into a parking spot, so that the front of the vehicle was facing toward the exit from the parking lot. He then turned the headlights off and quickly back on. A few moments later, at what the evidence shows was, arguably at least, the same time shots were fired inside the Pizza Pizza, Shaw pulled the vehicle out onto the sidewalk, thereby getting the car ready for the getaway that occurred a minute or so later. All of this occurred before the three men had returned and before Shaw would have been able to see them running toward the car.
[16] The CCTV shows that, by the time Poyser got back to where the car had been parked, the other two men were already in the vehicle and Shaw had already pulled out onto the street, such that he had to stop for Poyser. Once Poyser was aboard, the vehicle then sped away.
[17] Poyser testified that he dropped off the three accused at Shendale, and then endeavoured to drive himself home, but, since he was quite intoxicated, he got lost.
[18] Poyser said that Shaw phoned him shortly after the shooting to tell him that he loved him and asked about the dash camera in his, Poyser’s, car. Poyser says he told Shaw that he had destroyed the SD card from the dash cam.
Position of the Parties
[19] Mr. Derstine asserts that the evidence does not support an inference that Shaw knew that the other two men had guns or that they intended to harm, much less kill, someone.
[20] The Crown contends that the evidence amply supports an inference that Shaw had knowledge required to make him liable as a secondary party to murder.
Discussion
[21] In R. v. Bains, 2015 ONCA 677, the Court succinctly summarized the directed verdict test in the following terms:
[158] The standard a judge is to apply when asked to decide a directed verdict application at the conclusion of the case for the Crown is the same standard a justice applies in deciding whether to order committal at the conclusion of a preliminary inquiry under s. 548(1) of the Criminal Code. The issue to be determined is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilt: United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080; R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160; and R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21.
[159] The standard on a directed verdict application does not differ according to whether the Crown's case consists of direct or circumstantial evidence. But the nature of the judge's task varies according to the nature of the evidence adduced. Where the evidence of any essential element is entirely circumstantial, the judge engages in limited weighing of the evidence to determine whether the evidence, considered as a whole, is reasonably capable of supporting the inference the Crown seeks to have the trier of fact draw about that essential element: Arcuri, at para. 23.
[160] The limited weighing of circumstantial evidence on an application for a directed verdict does not entitle the judge to draw factual inferences, assess credibility or ask whether he or she would find guilt established if assigned the role of trier of fact: Arcuri, at para. 23. Provided the judge concludes that the evidence as a whole, if believed, could reasonably support an inference of guilt, a directed verdict motion will fail: Arcuri, at paras. 23, 30, 33.
[22] As for whether Shaw knew that his brother and Ali-Nur were armed, although Poyser could not say where exactly Shaw was when Lenneil Shaw took the guns out of the backpack, as I understood Poyser’s evidence, Shaw was in the basement, which from the photographic evidence appears to be a relatively small area. It would, then, be open to the jury to infer that he was present when the guns appeared and saw his brother handle the shotgun and hand the 9 mm. pistol to Ali-Nur and to conclude that he knew that they were armed.
[23] As for Shaw knowing that the men intended to shoot Hagley (or someone), Poyser said that immediately after Ali-Nur said, “There’s Jarryl”, Shaw drove around the block at least twice and possibly three times, stopping intermittently. He then drove to a secluded spot, even though there was parking available on the street, and parked the car in a place where, arguably, it was less likely to be observed than it would have been had he parked it on the street. He then, while his companions were absent, made the car ready for a quick escape.
[24] Once out of the car Lenneil Shaw and Ali-Nur approached the Pizza Pizza in a stealthy manner, entered the restaurant and, once inside, immediately began shooting. Shaw put the car in motion before the others had returned, but, arguably at least, after he heard the gunfire. Once they had finished shooting, the men ran back to the car. As soon as Lenneil Shaw and Ali-Nur returned to the car, Shaw, even though it was Poyser’s car, started to leave without Poyser.
[25] Lastly, Poyser’s evidence that Shaw phoned him to inquire about the dash cam is a piece of after the fact conduct that is consistent with his having had knowledge of the shooting beforehand.
[26] Having engaged in the limited weighing of the evidence the authorities require, in all the circumstances, I am of the view that the jury could reasonably infer that Shaw knew that Lenneil Shaw and Ali-Nur had guns and intended to shoot someone. Further, in light of all the evidence, but, in particular, the evidence that Shaw circled the block several times and stopped the car several times as he did, that there is evidence upon which the jury could reasonably conclude that the murder was planned and deliberate.
Result
[27] For the foregoing reasons, I dismissed the application.
Clark J.
Released: June 4, 2019