COURT FILE NO.: YC-18-1045
DATE: 2019 06 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
C. Nadler and A. Cornelius, Counsel for the Crown
Applicant
- and -
A.D. (A Young Person)
U. Kancharla, Counsel for the Respondent
Respondent
HEARD: June 12th, 2019
REASONS FOR DECISION
LEMAY J
[1] The accused, a young offender, is charged with one count of first degree murder as a result of the death of Mr. Kamar McIntosh. Mr. McIntosh was killed inside the washroom area at a fast food restaurant in the Mississauga area at approximately 3:30 p.m. on April 27th, 2017.
[2] The matter proceeded before me with a jury. There were considerable delays, occasioned by issues in respect of an expert that the Defence had intended to retain. Those issues will be addressed in separate reasons.
[3] The Crown’s case concluded on June 10th, 2019, and the defence, in the presence of the jury, elected not to call any evidence. At that time, I discussed with counsel a timetable to put this matter in the hands of the jury. We agreed that a conference would be held on June 11th, 2019 to discuss various issues for inclusion in the jury charge.
[4] On June 11th, 2019 at the outset of Court, counsel for the accused advised that she was bringing a directed verdict motion. She did not provide particulars of this motion, in spite of the fact that she had been advised that I expected written motion materials to be filed for all motions in this trial. Counsel had also not provided any advance notice to Crown counsel of her intention to bring a directed verdict motion.
[5] As a result, I was required to adjourn the pre-charge conference, and schedule the hearing of the directed verdict for June 12th, 2019. Counsel from both sides were directed to file materials, including a factum and casebooks, so that the Court could consider the motion.
[6] In her materials, counsel for the accused sought a directed verdict on both first degree murder, and the lesser included offence of manslaughter. At the outset of argument on June 12th, 2019, she conceded that the lesser included offence of manslaughter could not be disposed of by way of a directed verdict.
[7] At the conclusion of counsel for the accused’s argument, and without calling on the Crown, I dismissed the directed verdict application with brief oral reasons. I indicated that fuller written reasons would follow. These are those reasons.
The Evidence
[8] I start my summary of the evidence by noting that I am not finding facts in this case. That is not my role. At this point, my role is only to review the evidence to ensure that there is evidence that would allow the issue of murder to be placed before the Jury. I will return to the test I must apply in the next section.
[9] All of the relevant events take place in the afternoon of April 27th, 2017. The shooting itself takes place in the washroom, which is not visible to the video surveillance cameras in the restaurant. The photographic evidence of the men’s washroom indicates that it was not large, with a stall, a urinal and a sink. The rest of the restaurant is captured on video surveillance, and this was entered into evidence by the Crown.
[10] The accused, Mr. Thulani Chizanga and Mr. Shamar Meredith are all in contact by cell phone in the twenty (20) minutes or so before they arrive at the Popeye’s restaurant.
[11] The video surveillance from the Popeye’s restaurant makes it clear that they all arrive within a couple of minutes of each other approximately a half-hour before the shooting takes place.
[12] Mr. Chizanga goes into the washroom at Popeye’s approximately fifteen (15) minutes before the shooting takes place. He does not emerge from the washroom until after the shooting takes place.
[13] In the time between arriving at the restaurant and the shooting, the accused does not leave the restaurant. Mr. Meredith leaves at one point, and comes back. When Mr. Meredith returns, he does not sit down although he does lean against a stool.
[14] In the couple of minutes before the shooting, Mr. Meredith leaves the restaurant briefly. At that same moment, the accused enters the washroom. Approximately a minute before the shooting takes place, Mr. Meredith comes back into the restaurant and goes to the washroom.
[15] A few seconds later, the accused comes out of the washroom and goes to the counter area. This area provides a view of both entrances to the restaurant. While the accused is at the counter, someone runs past him and heads for the washroom area. The accused immediately follows that person to the washroom area.
[16] That person exits from the washroom area, and pushes the accused. The accused continues to remain around the washroom area, and only flees the scene at about the same time that Mr. Meredith and Mr. Chizanga leave.
[17] Immediately prior to the sounds of shots from the washroom area, staff members from the restaurant heard the sounds of fighting for a brief period of time.
[18] There is no real dispute that Mr. McIntosh was killed as a result of the gunshots that were fired at him. In addition, the uncontradicted evidence on this trial was that there were bullets from at least two (2) different guns found at the scene of the shooting.
[19] When Mr. Meredith leaves, the video shows that he has something that looks like a long gun partially concealed underneath his jacket. However, a long black cylinder is clearly observed on the still shots from the video, and can be clearly seen when the video is viewed and stopped at that point.
[20] After the shooting, the accused went to the nail salon in another part of the complex where the restaurant is located. From there, he called a taxi, got into the taxi and started to go home. He also telephoned both Mr. Meredith and Mr. Chizanga almost immediately after the shooting took place.
[21] The taxi was then diverted by the accused, and picked up both Mr. Chizanga and Mr. Meredith. Mr. Meredith then gave the jacket that he was wearing to the accused. That jacket was subsequently retrieved from the police when they executed a search warrant on the accused’s home. No gunshot residue was found on either the jacket or in the taxicab.
The Elements of the Offence
[22] The Crown alleges that the accused committed first degree murder pursuant to section 21 of the Criminal Code. More specifically, the Crown alleges that the accused aided or abetted Mr. Chizanga and Mr. Meredith in committing the planned and deliberate murder of Mr. McIntosh.
[23] The elements that the Crown must establish in support of this offence are as follows:
a) Mr. McIntosh’s death was caused by the shooter or shooters.
b) The shooter or shooters caused Mr. McIntosh’s death unlawfully.
c) The shooter or shooters intended to cause the death of Mr. McIntosh.
d) The murder of Mr. McIntosh was planned and deliberate.
e) The accused in this case aided or abetted the shooter or shooters in committing the murder.
[24] In terms of this motion, I note that most of the argument was focused on the last two elements. When I conduct my analysis, I will review each of the elements separately.
The Arguments of the Parties
[25] Although I did not call on the Crown, I had the Crown’s casebook and factum on the issue of the directed verdict. I will therefore summarize both of the arguments from both sides.
[26] The Crown argues that a reasonable jury, properly instructed, could convict the accused of first degree murder on the basis that he aided and abetted Mr. Chizanga and Mr. Meredith in committing that murder.
[27] In support of that assertion, the Crown points to evidence that would allow the jury to infer that the accused knew that Mr. Meredith and Mr. Chizanga intended to murder Mr. McIntosh, that the accused intended to (and did, in fact) aid or abet them in carrying out the murder, and that the murder was, to the accused’s knowledge, planned and deliberate.
[28] Defence counsel argues that there is no evidence to suggest that the accused knew of any plan to commit a murder either before he entered the restaurant or while he was at the restaurant. Defence counsel argues that attempting to draw inferences from the conduct of the accused, and of the shooter or shooters, before the shooting takes place would be speculative. Finally, Defence counsel argues that the post-incident conduct cannot be used by the Crown to support the inferences that they wish to have drawn in this case.
The Test for a Directed Verdict
[29] The test to be applied in determining whether to grant a directed verdict is the same test that is applied in the Ontario Court of Justice for determining whether a matter should be committed to trial. The test is articulated in R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R.679, where McLachlin J. stated, at para. 22:
If the evidence is all direct evidence, the trial judge’s task on a motion for a directed verdict is quite simple. An absence of evidence on an essential element will result in a directed acquittal. The existence of evidence on every essential element will result in dismissal of the motion. It remains only for the jury to decide who it chooses to believe and what evidence it decides to accept or reject. Where the case is based on circumstantial evidence, i.e., where any of the elements are not established by direct evidence, the task of the trial judge is more complicated. The Crown adduces evidence from which is submits facts in issue can be inferred from facts not in issue. In order to determine whether a properly instructed jury could reasonably convict, the judge must determine whether, assuming the circumstantial facts are proved, it would be reasonable to make the inference necessary to establish the facts in issue.
[30] Although McLachlin J. was speaking in dissent, the only disagreement in Charemski was over whether sufficient evidence had been led in that case. As a result, the test in Charemski is the applicable test (see R. v. Papadopoulos [2004] O.J. No. 2766 (S.C.J.), at para. 44)
[31] There are some other relevant principles that emerge from the case law. In particular, in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, it is noted that the preliminary inquiry judge does not himself draw inferences from the evidence (see paragraphs 30 and 33). Similarly, on a directed verdict it is not my task to draw inferences from the evidence.
[32] The one caveat to that analysis comes in a case where the Crown leads circumstantial evidence. As the Ontario Court of Appeal has noted in R. v. Pettipas-Lizak, 2017 ONCA 963:
On a directed verdict application, where the Crown leads circumstantial evidence, the trial judge must consider all the evidence and weigh it to a limited extent. This limited weighing means that the trial judge must assess the evidence in a way that is most favourable to the Crown: see R. v. Arcuri 2001 SCC 54, at para 23. The trial judge is not entitled to weigh the competing inferences available to the Crown and the accused. Yet that is what the trial judge did in this case.
[33] With these principles in mind, I will now analyze the case before me.
Analysis and Conclusions
[34] Again, I note that I am not making any factual conclusions. I am just summarizing the evidence that the jury has available to it, and conducting the limited weighing necessary where that evidence is circumstantial.
[35] The Crown must establish that there is some evidence, even circumstantial evidence, to support each of the elements of the charge. There is clearly evidence to support the first two elements of the charge. The pathologist testified that the death was caused by the 27 gunshot wounds that Mr. McIntosh suffered. Fifteen of those gunshot wounds were on his torso, and there were nine different locations in Mr. McIntosh’s body where bullets or bullet fragments were recovered.
[36] There is also evidence to establish that the shooters had the intention to murder Mr. McIntosh. In particular, there is the evidence that there were two (2) guns in the washroom that were used to shoot Mr. McIntosh, and that Mr. McIntosh suffered 15 bullet wounds on his torso. This is evidence from which a properly instructed jury could infer that, in the moment, both Mr. Chizanga and Mr. Meredith had the intent to kill Mr. McIntosh.
[37] Then, there is also evidence from which a jury could infer that the killing of Mr. McIntosh was both planned and deliberate. In that regard, I note as follows:
a) There were phone records that showed the accused in contact with both Mr. Meredith and Mr. Chizanga in the twenty (20) minutes before they arrived at the Popeye’s.
b) The parties gathered at the Popeye’s approximately thirty (30) minutes before the shooting, and were seen looking out the window on occasion. There is no evidence from which we can infer that they see Mr. McIntosh, but it could be inferred that they were looking for him.
c) Mr. Chizanga went into the washroom approximately 20 minutes before Mr. McIntosh arrived at the restaurant, and never came out. Given the evidence of the size of the washroom, the jury could infer that Mr. Chizanga was in the washroom waiting for someone rather than using the facilities.
d) The accused entered the washroom a couple of minutes before the shooting. Approximately a minute before the shooting commences, Mr. Meredith entered the washroom and the accused leaves it less than a minute later.
e) When Mr. McIntosh enters the restaurant, he goes directly to the washroom. From this fact, the Jury can infer that Mr. McIntosh’s presence at the washroom has been pre-arranged.
f) The accused goes to the counter to ask for change, but it would be open to the jury to infer that the accused moved to a position where he could see both entrances of the restaurant.
g) While the accused is at the counter, and Mr. McIntosh has entered the washroom, an unidentified person runs into the restaurant and goes to the washroom door. The accused immediately follows after this unidentified person to the washroom entrance, and then when this person leaves the washroom area, the accused then follows him.
h) At the point when the jury could infer that the gunfire had started (because of the reactions of the patrons), the accused is standing at the entrance to the washroom area with a line of sight into where the actions might be taking place.
[38] From all of this evidence, it would be open to a trier of fact to infer that Mr. Chizanga and Mr. Meredith had pre-arranged a meeting with Mr. McIntosh in the washroom of the Popeye’s, and had brought two guns to that meeting. Given the small space, the significant number of shots that were fired and Mr. Chizanga’s presence in the washroom for twenty minutes before the shooting, it would be open to a trier of fact to determine that this was a planned and deliberate murder.
[39] This brings me to the question of whether there is evidence from which a properly instructed jury could infer that the accused aided in a planned and deliberate murder.
[40] In order to establish that the accused aided Mr. Meredith and Mr. Chizanga in a planned and deliberate murder, I note that there must be evidence from which a properly instructed jury can conclude that the accused knew of the planned and deliberate murder and did (or failed to do) something to aid in it.
[41] In terms of the evidence, I note as follows:
a) There were phone calls between Mr. Meredith, Mr. Chizanga and the accused in the time prior to arriving at the restaurant.
b) The accused was present with both Mr. Meredith and Mr. Chizanga in the restaurant before the shooting took place.
c) Mr. Meredith was seen immediately after the shooting leaving the restaurant with what a trier of fact could conclude was a long gun.
d) A trier of fact could conclude that the gun described in paragraph (c) was large and that, therefore, the accused would have seen the gun before the shooting.
e) From the first four points listed above, a trier of fact could infer that the accused was aware of the plan to kill Mr. McIntosh.
f) From the accused’s conduct outside the washroom, including following someone to the washroom while the fight is going on, and watching the door to the washroom at the point when the shooting may have started, a properly instructed jury could infer that the accused had been posted as a lookout while the shooting took place.
[42] On this motion as a whole, Counsel for the accused advanced two general points. First, she argued that there was evidence from which the jury could infer that the accused did not know about, or aid in any plan to kill Mr. McIntosh. That may be correct. However, it does not change the fact that there is evidence from which a properly instructed jury could infer that the accused aided in a planned and deliberate murder of Mr. McIntosh.
[43] Second, counsel argued that there was no evidence that the accused knew of any plan to kill Mr. McIntosh. I acknowledge that there is no direct evidence that the accused knew of a plan to kill Mr. McIntosh. However, at paragraph 41, I have already set out the evidence that could be used to infer that the accused knew of, and aided, a plan to kill Mr. McIntosh.
[44] For the foregoing reasons, the motion for a directed verdict is dismissed.
LEMAY J
Released: June 18, 2019
COURT FILE NO.: YC-18-1045
DATE: 2019 06 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
- and -
A.D (A Young Person)
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: June 18, 2019