COURT FILE NO.: CR-18-1310
DATE: 2020 07 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Alexander Cornelius and Cindy Nadler, for the Crown
- and –
THULANI CHIZANGA and SHAMAR MEREDITH
Deniz Sarikaya and John Struthers, for Thulani Chizanga
Melina Macchia, for Shamar Meredith
HEARD: October 10, 2019
DIRECTED VERDICT RULING
D.E HARRIS J.
[1] At the close of the Crown’s case, the defendants applied for a directed verdict to reduce the charge they were facing from first degree murder to second degree murder. I dismissed it at the time. These are my reasons for doing so.
[2] First degree murder was premised solely on planning and deliberation: Section 231(2) of the Criminal Code. In my view, there was evidence upon which a reasonable jury, properly instructed, could find both of these elements beyond a reasonable doubt and go on to convict the defendants: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.
[3] In the end, the jury did not convict of first degree murder; they convicted of second degree murder. That does not detract from the conclusion that there was sufficient evidence to convict on first degree planned and deliberate murder.
[4] To summarize, there was evidence that both accused waited at the scene of the murder in a Popeyes restaurant in Mississauga for the victim Kamar McIntosh to enter. There was evidence which the jury could find that the men were watching out for him through the restaurant’s windows. Mr. Meredith left the restaurant several times. The jury could have found that he was performing a reconnaissance mission anticipating Kamar’s arrival.
[5] Mr. Chizanga went into the washroom at 3:11 p.m. and did not emerge until after the victim was killed 15 minutes later. Mr. Meredith is in and out of the restaurant and the washroom before the shooting. At 3:24:35, Mr. Meredith comes back into the restaurant after being outside and goes directly into the washroom. At about 3:24:54, the accomplice A.D., a young person found guilty of manslaughter in a separate trial, leaves the washroom. At about 3:25:06 p.m., about 30 seconds after Mr. Meredith went into the washroom, Kamar McIntosh walks into the restaurant and, after a momentary hesitation, goes directly to the washroom.
[6] Popeyes’ managers testified that there were sounds of a fight coming from the washroom area after Kamar McIntosh arrived and moments. The video evidence shows that within no more than 30 seconds after Kamar McIntosh arrived in the restaurant, shots were heard. Staff and patrons suddenly appear bewildered on the video and flee the area. Ms. Zahar, the general manager, blocks her ears in response to gunfire. The evidence suggests that Mr. Meredith killed Kamar McIntosh by shooting him 14 or 15 times with a semi-automatic assault type rifle. The evidence seems to be that the duration of the shots was somewhere between 2.5 seconds and 6 seconds.
[7] At 3:25:51, Mr. Meredith runs full tilt out of the washroom while concealing in the front of his coat the barrel of a long barrelled gun. Anther video from the street soon afterwards also shows Mr. Meredith with the gun. His other two associates flee immediately as well.
[8] Shortly afterward, they re-unite and make their escape jointly in a taxi-cab driven by Mr. Ali. There is video of the three in the back seat, getting in one by one at three different locations and then leaving the cab together. The jury could find that the video shows the murder weapon wrapped in a jacket in the back seat of the taxi-cab.
[9] In summary, it was open for a jury to find that the accused were on the lookout for Kamar McIntosh, saw him about to arrive, hid in the washroom where they knew he was going to go, and then immediately shot him, all in accordance with a pre-arranged plan. Their immediate flight from the scene and their re-uniting shortly afterward in Mr. Ali’s taxi-cab with the murder weapon could be used by a reasonable jury to ground a consciousness of guilt inference to assist in establishing planning and deliberation: R. v. Poitras, 2002 CanLII 23583 (ON CA), [2002] O.J. No. 25, 154 O.A.C. 25, 1 C.R. (6th) 366 (C.A.) at para.11; R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.) at paras. 14-16.
[10] There was a prima facie case on all essential elements of planning and deliberation: R. v. Widdifield (1961), 6 Crim. L.Q. 152 (Ont. H.C); R. v. Reynolds (1978), 1978 CanLII 1269 (ON CA), 22 O.R. (2d) 353, 44 C.C.C. (2d) 129 (Ont. C.A.) per Martin, J.A., at p. 137; R. v. More, 1963 CanLII 79 (SCC), [1963] S.C.R. 522, 41 C.R. 98, [1963] 3 C.C.C. 289 (S.C.C.). The total evidence, if believed, could reasonably support a conviction for first degree murder: R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at paras. 151-154; R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 34.
[11] For these reasons, the direct verdict application was dismissed.
D.E HARRIS J.
Released: July 31, 2020
COURT FILE NO.: CR-18-1310
DATE: 2020 07 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
THULANI CHIZANGA and SHAMAR MEREDITH
Respondents
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: July 31, 2020