COURT FILE NO.: CR-19-00000184-00MO
DATE: 20191122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ZAYD CHAUDHRY
A. Del Rizzo and J. Cruess, for the Crown
M. Wyszomierska, for Mr. Chaudhry
HEARD: 6 November 2019
s.a.Q. akhtar j.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] Zayd Chaudhry was charged with killing Abdulkadir Bihi on 5 October 2017. At the preliminary inquiry, the Crown sought committal on the charge of first-degree murder based on planning and deliberation. The preliminary inquiry judge found that there was some evidence upon which a jury properly instructed could convict Mr. Chaudhry of second degree murder. However, he concluded that there was no evidence of planning and deliberation and, accordingly discharged Mr. Chaudhry of first degree murder.
[2] The Crown applies before this court for an order of certiorari setting aside the preliminary inquiry judge’s discharge order and further requests that the matter be returned to a preliminary inquiry with an order of mandamus requiring the preliminary inquiry judge to commit on the offence of first degree murder.
The Crown’s Evidence
[3] On 5 October 2017, Abdulkadir Bihi was seated in his car in the parking lot behind 265 Dixon Road. At approximately 2:46 p.m. a male wearing a dark hoodie and pants approached Mr. Bihi’s car, leaned into the car to engage him in conversation before firing five shots into his body, killing him.
[4] The shooter fled the scene and was seen entering a taxicab on Dixon Road with another male.
[5] At the preliminary inquiry, the Crown called Matthew Cameron, a furniture company driver who was seated in a truck in a laneway in front of 263 Dixon Road. He saw the shooter hunched over the window of Mr. Bihi’s car and heard three or four loud sounds that he thought were gunshots, and then observed a cloud of smoke. Mr. Cameron saw the shooter run to an orange and green taxi waiting on Dixon Road, accompanied by another male.
[6] The Crown alleged that the respondent was the shooter and that he shot Mr. Bihi as part of a pre-arranged plot carried out with the assistance of another male, Faysal Omar. The Crown argued that on the day of the shooting, Mr. Omar provided Mr. Chaudhry with a cell phone carrying the number 437 990 1367. Moreover, the Crown adduced evidence connecting the same phone to Mr. Chaudhry: it was listed as his phone number on the owner resident information form submitted for use at his apartment at 55 Speers Road.
[7] The Crown also called Khalif Jama, who was driving the taxi that the shooter was seen to enter. He testified that he picked up a male in a parking lot outside 290 Dixon Road. The Crown alleges this man to be Mr. Omar and the evidence shows that the taxi fare was ultimately paid by a TD bank card in Mr. Omar’s name.
[8] Mr. Jama said that Mr. Omar told him that he was waiting for some friends and the cab remained in the parking lot.
[9] After a few minutes, Mr. Jama grew impatient and suggested that Mr. Omar call his friends. Mr. Omar responded by telling Mr. Jama that he did not have a phone but could give Mr. Jama a number to call – 437 990 1367 – so that he could find out where those friends were. Mr. Jama agreed and made the call which was answered by a male. When Mr. Jama asked where he was, the male responded by saying “we’re coming”.
[10] Mr. Omar instructed Mr. Jama to drive to a location on Dixon Road near where the shooting had occurred. When the cab arrived there, Mr. Jama testified that two males emerged from a pathway leading up from the murder scene and entered the cab. The Crown alleges that these men were Mr. Chaudhry and Zakariye Ali.
[11] Mr. Jama drove Mr. Chaudhry, Mr. Omar and Mr. Ali to 55 Speers Road, an apartment building in Oakville. All three were captured on security cameras after alighting from the taxi. Mr. Chaudhry was wearing a light coloured hoodie and black track pants with three vertical stripes, and Mr. Omar a grey hoodie and grey pants. The third male, Mr. Ali, was wearing a black jacket with white detailing and dark pants.
[12] The three men moved to an area not fully covered by cameras for approximately two minutes. When they were next seen, Mr. Chaudhry had changed clothing wearing a white t-shirt, grey jeans and black baseball hat. The other two men, however, remained dressed as before. As they entered 55 Speers Road both Mr. Chaudhry and Mr. Omar bowed their heads as if to conceal their faces from the security camera within the building.
[13] On 7 October 2017, police executed a search warrant for Unit 1108, 55 Speers Road, Mr. Chaudhry’s residence. Moments before they entered the residence, the handgun used to kill Mr. Bihi was thrown from the unit to the ground. Mr. Chaudhry was not present when police began the search. However, his fingerprints were found present in the unit and a cheque in his name was discovered in a drawer along with a magazine that fit the murder weapon.
[14] A further search of the garbage room in 55 Speers Road led to the seizure of a hoodie and track pants matching the description of the clothes worn by Mr. Chaudhry as he left the taxi on 7 October 2017. When tested, the pants were found to have a particle of gunshot residue.
[15] Mr. Chaudhry was charged with first degree murder with the Crown alleging that Mr. Bihi’s killing had been planned and deliberate. However, the preliminary inquiry judge disagreed and committed only on second degree murder.
The Positions of the Parties
[16] Mr. Del Rizzo, on behalf of the Crown, seeks certiorari of the preliminary inquiry judge’s decision on the basis that he committed jurisdictional error by ignoring inferences favourable to the Crown and failing to consider the whole of the evidence.
[17] Ms. Wyszomierska, representing Mr. Chaudhry, submits that when the evidence is considered as a whole, it is clear that there was no evidence of planning and deliberation before the preliminary inquiry judge. It follows that the judge acted within his jurisdiction in discharging the first degree murder charge.
[18] There is no dispute, at this hearing, that there was some evidence demonstrating that Mr. Chaudhry was the shooter and also the person that entered the taxicab when it stopped on Dixon Road. Nor is there any dispute, for the purposes of this hearing, of the identities of the other parties captured on camera.
[19] The only issue to be decided on this application is whether the preliminary inquiry judge committed jurisdictional error in not committing Mr. Chaudhry on the charge of first degree murder.
LEGAL PRINCIPLES
[20] The Criminal Code provisions relating to committal can be found in subsection 548(1), which reads as follows:
548 (1) When all the evidence has been taken by the justice, he shall
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
[21] If there is sufficient evidence of criminal charges upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit an accused person to stand trial on those charges: United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080.
[22] A preliminary inquiry judge is not permitted to weigh the evidence or make credibility findings. If the Crown has adduced direct evidence on all elements of the offence, the preliminary inquiry judge must commit the accused even in the face of exculpatory evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 29.
[23] There is a distinction, however, when the Crown relies upon circumstantial evidence to justify committal. In these circumstances, the preliminary inquiry judge is permitted to engage in a “limited weighing” exercise. When they do so, the judge does not draw inferences from facts or assess credibility but evaluates “the reasonableness of the inferences to be drawn” from the circumstantial evidence: Arcuri, at paras. 29-30. Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R. v. Wilson, 2016 ONCA 235, at para. 24; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18.
[24] If there is no evidence on an essential element of the charge, it is a jurisdictional error to commit an accused for trial: United States of America v. Shephard, at p. 1080.
[25] If a judge discharges an accused of charges by erroneously concluding that the totality of the evidence is insufficient to commit, there is generally no jurisdictional error even though the judge may later be found to be wrong: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23. The preliminary inquiry judge’s determination of sufficiency of evidence is entitled to the greatest deference: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48.
[26] The preliminary inquiry judge’s decision to discharge the accused can only be challenged by way of certiorari: Sazant, at para. 14. The reviewing court is not empowered to act as an appellate court and correct errors of law or substitute its own view as to whether there was sufficient evidence to satisfy the test for committal.
[27] In Sazant, at para. 25, the Supreme Court of Canada established three ways in which jurisdictional error might occur in the context of a preliminary inquiry:
(1) where the judge misunderstands the elements of the offence and fails to evaluate the Crown’s evidence against the correct position in law;
(2) where the judge prefers an inference favourable to the accused over an inference favourable to the Crown; and
(3) where the judge fails to consider the whole of the evidence.
[28] For the following reasons, I find that the judge committed the second and third jurisdictional errors described in Sazant.
THE JURISDICTIONAL ERRORS
The Trial Judge Failed to Draw an Inference Favourable to the Crown
[29] The sum total of the judge’s reasons regarding evidence of planning and deliberation is set out as follows:
Planning is a "calculated scheme or design which has been carefully thought out and the nature and consequences of which have been considered and weighed".
Deliberate means considered, not impulsive or not rash or hasty. The Crown points to the cellular phone used before the shooting. Without some evidence about such conversations, to say that they were talking about arranging a murder would be just a guess or just speculation. Mr. Cameron, who had the best view of the shooting, testified that he saw the shooter lean into Mr. Bihi's car, obviously interacted with him, and then pulled out and began shooting. I dare say that if this was a planned murder he would have simply shot him and not interacted with him first.
There is also no evidence of conflict or animus between Mr. Chaudhry and Mr. Bihi. I do not conclude that there is evidence of planning and deliberation. My conclusion is that Mr. Chaudhry has to stand trial on a charge of second degree murder in the death of Abdulkadir Bihi.
[30] Mr. Del Rizzo argues that in drawing the inference that he did, the trial judge fell afoul of the comments in Sazant which required him to draw the inference most favourable to the Crown.
[31] In considering this issue, I start by confessing that I am unsure how the level of interaction between Mr. Chaudhry and Mr. Bihi could impact the question of whether the murder was planned and deliberate let alone provide the basis that the murder was not planned and deliberate.
[32] Circumstantial inferences are ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. Those inferences cannot be based on speculation or conjecture: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 530.The inference need not be one that is easy to draw and a difficult inference can also be logical and relevant: R. v. Katwaru (2001), 2001 24112 (ON CA), 52 O.R. (3d) 321 (C.A.), at para. 40. The inference need not be a likely or probable inference. Even if it is a difficult inference to draw, the inference that is most favourable to the Crown must be drawn at the preliminary inquiry stage: R. v. Dwyer, 2013 ONCA 368, at para. 4.
[33] Here, the judge appeared to draw an inference favouring Mr. Chaudhry to decide a lack of planning and deliberation. If such an inference was available, an equal and arguably stronger inference favouring the Crown should also have been drawn: that the interaction between the shooter and the victim could have taken place to lull the victim into a false sense of security before the killing took place.
[34] In failing to draw this inference, the preliminary inquiry judge committed a jurisdictional error.
The Preliminary Inquiry Judge Failed to Consider the Whole of the Evidence
[35] Ms. Wyszomierska submits that in making the comments in relation to the interaction between the accused and the victim, the preliminary inquiry judge was simply stating that there was no evidence of planning and deliberation. I agree that the judge came to that conclusion but, as explained previously, he did so erroneously.
[36] Even if Ms. Wyszomierska is correct, that does not assist Mr. Chaudhry because there was evidence that mandated committal for first degree murder and that evidence was neither addressed or even mentioned by the preliminary inquiry judge.
[37] First, there was the issue of Mr. Chaudhry’s change of clothing.
[38] The Crown used video surveillance evidence to show that shortly after arriving at 55 Speers Road, Mr. Chaudhry, Mr. Omar and Mr. Ali alighted from the taxi and went to an area of the building’s parking lot which was not clearly covered by security cameras. As previously described, when they were next seen, a minute or two later, returning to the building, Mr. Chaudhry was wearing different clothing.
[39] There are two inferences to be drawn from this evidence: (1) Mr. Chaudhry wore two sets of garments to the shooting, or (2) Mr. Chaudhry had hidden a set of clothing in an area behind the building and changed into it after being dropped off by the taxi.
[40] Both inferences support the idea that the shooting was pre-planned. There was no reason for Mr. Chaudhry to wear two sets of clothing to the shooting unless he contemplated quickly discarding his outer clothing in order to change his appearance or dispose of evidence. Alternatively, a strong inference could be drawn from Mr. Chaudhry’s concealment of attire in the parking lot as being pre-planned placement so that he could change as soon as he returned and dispose of the clothing before being captured on the building’s security cameras.
[41] Post-offence conduct has been held to constitute evidence of planning and deliberation. For example, in R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), the court held that the accused’s actions after shooting the victim – stealing a gun and money, laughing when they returned to their getaway car and disposing of evidence – could constitute evidence of planning and deliberation. See also: R. v. Khan, 2007 ONCA 779, 230 O.A.C. 174; R. v. S.B. 1, 2018 ONCA 807, 143 O.R. (3d) 81, at paras. 63-72.
[42] In this case, I would liken the evidence as more akin to pre-offence conduct. Mr. Chaudhry’s actual change of clothes after the event is not, of itself, demonstrative of planning and deliberation. Wearing two sets of clothing to the murder scene or concealing clothing prior to the shooting so that it could be worn immediately afterwards, on the other hand, provides strong support for the notion that Mr. Bihi’s killing was pre-planned.
[43] Then, there was the use of the taxi.
[44] The Crown adduced evidence that Mr. Jama’s taxi had been pre-ordered by Mr. Omar and directed to a location near the shooting to collect Mr. Chaudhry once he indicated that he “was coming”. One of the inferences available from the evidence was that the cab was ordered as part of an escape plan. Mr. Omar’s delay in providing Mr. Jama the destination of the fare until confirmed by the phone call, and the fact that Mr. Omar could direct the taxi to the area where Mr. Chaudhry emerged from the shooting, suggests that the collection point and timing had been pre-arranged between the parties.
[45] I would also note that it was clear that Mr. Chaudhry brought a gun with him to the murder scene.
[46] Each of these items of evidence might, arguably, constitute the necessary evidence of planning and deliberation. However, there is no doubt that their cumulative effect would be more than enough to allow a reasonable and properly instructed jury to convict of first degree murder through planning and deliberation.
[47] As I have already noted, the judge made no reference to any of this evidence when considering the issue of planning and deliberation.
[48] I agree with Ms. Wyszomierska that the preliminary inquiry judge was not required to set out each and every piece of evidence that he considered in coming to his decision. Insufficiency of reasons is not a jurisdictional error in the preliminary inquiry context: R. v. Suissa, 2008 ONCA 860, at para. 4; R. v. Hughes (2007), 2007 20780 (ON SC), 262 C.C.C. (3d) 98, at paras. 36-40.
[49] However, the judge’s reasons in this case make it clear that he confined his analysis of planning and deliberation to the reasons reproduced above. In other words, if he was aware of the evidence he failed to consider it when deciding committal on first degree murder. This amounted to jurisdictional error.
CONCLUSION
[50] I acknowledge that a certiorari application is not an opportunity for the reviewing judge to embark into his or her own inquiry of whether there was sufficient evidence for committal: Deschamplain, at para. 23; R. v. Turner, 2012 ONCA 570, 292 C.C.C. (3d) 69, at paras. 29-30.
[51] However, there is a distinction between conducting a new review for sufficiency of evidence and deciding whether the judge improperly ignored available inferences or failed to take into account the whole of the evidence: R. v. Hickey and Simoni, 2015 ONSC 86, at paras. 63-4.
[52] On this point, I am in agreement with the reasons of Dambrot J. in R. v. Bryce, 2015 ONSC 7004, at para. 32, aff’d R. v. Bryce, 2016 ONCA 513, that when a preliminary inquiry judge finds that there is no evidence – as opposed to insufficient evidence – upon which to order an accused to stand trial, jurisdictional error is committed. Here, that is what the preliminary inquiry judge did in finding that the Crown had failed to adduce any evidence of planning and deliberation.
[53] However, even if I am wrong in that conclusion, I find that the preliminary inquiry judge committed jurisdictional error in the manner explained in Sazant by preferring an inference favourable to Mr. Chaudhry over an inference favourable to the Crown and failed to consider the whole of the evidence.
[54] For these reasons, the Crown’s certiorari application is granted, the order discharging Mr. Chaudhry from standing trial on first degree murder is quashed, and the matter is remitted back to the preliminary inquiry judge.
[55] As I am of the view that once returned to the Ontario Court of Justice, a committal order is inevitable (see: R. v. Thomson (2005), 2005 8664 (ON CA), 74 O.R. (3d) 721 (C.A.)), I will issue an order of mandamus directing the preliminary inquiry judge to order Mr. Chaudhry to stand trial on a charge of first degree murder.
S.A.Q. Akhtar J.
Released: 22 November 2019
COURT FILE NO.: CR-19-00000184-00MO
DATE: 20191122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ZAYD CHAUDHRY
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.