R. v. Benamiar, 2020 ONSC 5622

COURT FILE NO.: 18-RM2313

DATE: 20200925

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

YAHEYA MESSARI BENAMIAR

Defendant

Vanessa Stewart, for the Crown

Neil Weinstein, for the Defendant

HEARD: January 27, 28, 29, 30, 2020; February 24, 25, 2020; August 17, 18, 19 ,20, 24, 26, 27, 28, 2020 and September 1, 2, 3, 2020.

REASONS FOR JUDGMENT

C.T. Hackland J.

Overview

1The accused is charged with the attempted murder of Abdilatif Diriyeh (“Latif”) by discharging a firearm, contrary to section 239 (1) of the Criminal Code. He is also charged with discharging a firearm with intent to endanger life, assault with a firearm, aggravated assault, using a firearm while committing an indictable offence, using a restricted weapon and possessing a weapon for the purpose of committing an offence. He is also charged with a number of firearms offences arising from his alleged possession of a restricted weapon, being a .45 calibre handgun.

2These charges arise out of a shooting incident which occurred on March 24, 2018 in an upstairs apartment on the second floor of a house. The shooter entered the house, ascended the stairs and confronted the two occupants of the apartment, Latif and his friend, a young woman I will refer to as H.B. The shooter was in the apartment for approximately two minutes. He shot Latif several times using a .45 calibre handgun and fled the premises. Latif subsequently recovered in hospital from his gunshot wounds.

3Much of the Crown’s case was focussed on proving that the accused was the shooter. Ultimately however, the accused elected to testify in his own defence and he admitted that indeed he was the shooter. He said that he was a street level drug trafficker, had attended the apartment at Latif’s invitation to sell him cocaine. He said Latif produced a pistol and attempted to rob him, a struggle ensued in which the accused gained control of the pistol and he shot Latif as Latif lunged at him. He then fled the apartment with the pistol and the drugs, which he disposed of. He said that he feared for his life and was acting in self-defence when he shot Latif.

4The Crown’s principal witness was H.B. She retreated to her room, believing that a violent encounter was imminent between the accused and Latif, with the result that she did not witness the shooting. The victim of the shooting, Latif, a person with a serious criminal record of violence, did not cooperate with the police investigation, nor did he testify as a Crown witness. He was called to testify by the defence in the course of a hearsay voire dire to establish the necessity of admitting an utterance he made to H.B. about intending to rob the accused when he came to sell drugs. He told the court that it was important for him to not be seen as a rat, that he engaged in collusion with the accused while he (Latif) was recovering from the shooting in hospital. He admitted that he accepted payment from the accused to say that the accused was not the shooter and repeated a story about being shot by a stranger who appeared in the apartment a few minutes after the accused had left. I gave no credence to his evidence.

5In summary, the only narrative of exactly how the shooting occurred was that of the accused. For the reasons discussed below, the accused’s testimony raises a reasonable doubt about whether he may have been acting in self-defence. I have accordingly come to the conclusion that the Crown has not discharged its burden of proving beyond a reasonable doubt that the accused was not acting in self-defence. The accused is therefore found not guilty on the charge of attempted murder (count one) as well as on counts two to seven, which allege he used a firearm to assault the victim or that he used the weapon without lawful excuse.

Background

6I accept the accused’s testimony that he was a street level drug dealer and that his attendance at the apartment during this incident was by invitation, for the purpose of selling drugs. The Crown’s principal theory was that the accused went to the apartment in order to shoot Latif, his motive being some drug related grudge or territorial dispute related to the apartment being used by Latif as a ‘traphouse’. While that scenario is possible, the evidence does not support it. There is no evidence that the accused ever knew or interacted with Latif prior to the shooting. Extensive extracts from the accused’s two cell phones and from Latif’s cell phone were placed in evidence. Nothing linked the accused to Latif, nor to any apparent dispute between them or their respective friends. There was no evidence beyond suspicion or speculation, that the accused or Latif belonged to any street gang or had any territorial issues between them or their associates.

7The story of how the accused ended up in the apartment at the time of the shooting is told in extracts from H.B.’s cell phone and in her testimony and that of the accused. The accused, who sold drugs under a street name “Wavy”, was attempting to re-establish contact with a former customer, one Christy, who some months before had resided in the apartment with H.B. and her former boyfriend. The accused had H.B.’s cell phone number in his contacts associated with Christy. The evening before the shooting, the accused messaged H.B. “I’m Christy’s friend the guy with the really good stuff” … “I have some really good stuff where are you you should try”.

8I accept H.B.’s testimony that she showed the accused (Wavy’s) text message on her phone to Latif who then stated to her that he would like to get Wavy up to the apartment so that he could rob him and rip him off for his drugs. Following a voire dire I admitted this utterance for the truth of its contents under the traditional state of mind exception to the hearsay rule and on the basis of the principled exception, See R. v. Starr, 2000 SCC 40, 2000 2 SCR 144 and R. v. Bradshaw, 2017 SCC 35. About 2.5 hours following the accused’s message, a further message is sent from H.B.’s phone, “OK where are you” and an hour and a half later the accused texts back “U need”. I find on the basis of the evidence of H.B. and the accused that this exchange was between the accused and Latif, with Latif using H.B.’s phone.

9I accept H.B.’s testimony that she was upset to hear Latif say he planned to rob the accused and that Latif took her phone and from that point on used it himself to message the accused. This included sending a message to the accused, the next day at 3:40 p.m. “come up when you get hear” which was followed by a three minute phone call between Latif and the accused made by Latif using H.B.’s phone. I accept the accused’s evidence which was to the same effect, i.e. that he had initially messaged H.B. in an effort to connect with his drug customer Christy, that he ended up talking to and messaging the next day with Latif, who invited him to come up to the apartment to sell drugs. I find on the basis of the evidence of H.B. and the accused, corroborated by the cell phone extracts from H.B.’s phone, that Latif lured the accused up to the apartment with a view to robbing him.

10I would make some observations regarding H.B.’s credibility. She is a young woman with cognitive deficits arising from a serious diabetic condition and other medical causes. By her own admission her memory is poor, she often blacks out and gets confused and she has a particularly hard time accurately recalling events in the chronological order in which they occurred. I found her testimony was often confused and unreliable. She had also been assaulted by former roommates and boyfriends involved in the drug trade and she is a recovering addict. She was deeply distressed at the violence and threatened violence she had witnessed.

11On the other hand, I find H.B. was attempting to be honest in her recollections. She was particularly convincing when she essentially confessed in cross-examination that she and Latif had discussed Latif robbing the accused when he came to sell drugs. She admitted to not disclosing this important evidence prior to her trial testimony because she was afraid that she and Latif would be in trouble. Her testimony about the evening before and the day of the shooting are amply corroborated by her cell phone extracts and by the events that transpired when the accused was invited up to the apartment by Latif. Further corroboration for her testimony is that extracts from Latif’s cell phone contained messages to his friends saying that he was desperately short of money and that he was thinking about robbing someone.

The Shooting

12As noted, the accused testified about the incident in which he shot Latif. His testimony raises a reasonable doubt in my mind as to whether he intended to kill Latif. For reasons stated previously, I am persuaded that the accused attended the apartment on March 28, 2018 to sell drugs, not to attack Latif.

13The evidence establishes that the accused was in the apartment during this incident for about two minutes, indicating that events unfolded very rapidly. Latif messaged the accused to “come up when you get hear” at 3:40 p.m. and then he and the accused spoke by phone at 3:50 p.m. as the accused parked his car outside the apartment and approached the door to the stairway leading up to the apartment. Police records fix the time of the 911 call made by H.B. following the shooting as 3:52:52 p.m. H.B.’s testimony was that she came out of her room into the kitchen area, saw the accused talking to Latif and saw Latif shove “Wavy” down the top stairs with Wavy then coming back to confront Latif and both men went into Latif’s bedroom. At that point H.B. stepped into her own room, locking the door. She then heard an apparent struggle, with furniture being knocked about and then she heard gun shots. Shortly after, she came out of her room, saw the accused running out through the door at the foot of the stairs, and a wounded Latif telling her to “call 911”.

14The accused provided in his testimony, both in chief and in cross-examination, a consistent and in my view relatively credible description of the altercation with Latif. He acknowledged speaking on his phone to Latif at 3:50 p.m. as he parked his vehicle in front of the apartment. He entered the building and walked up the stairs to the second-floor apartment. He was familiar with the location as he had been there to sell drugs to Christie, several months before, when H.B. and her former boyfriend had also been present.

15The accused said that during this phone call he had asked Latif to come out to the car to do the drug deal because he was in a hurry, but Latif insisted he come up to the apartment. Upon reaching the landing at the top of the stairs he encountered H.B. and Latif standing in the kitchen area. He said to H.B. words to the effect that she looked familiar and thought he had seen her before and asked if she lived there. H.B. replied she did not live there anymore and then introduced him to Latif.

16The accused testified that he had the drugs in his right hand and held out his left hand indicating he wanted to be paid. Latif said that he wanted the accused to come into his bedroom where he kept his money and he said he wanted to sample the drugs. This made the accused very nervous, so he started down the stairs to leave. He said Latif then shoved him from behind, causing him to stumble. He regained his balance, turned to face Latif and saw that Latif had pulled up his t-shirt to expose a pistol in his belt. He followed Latif into his bedroom where Latif pointed the gun at his chest and told him to empty his pockets and hand over the drugs. The men were within two feet of each other. The accused was able to grab Latif’s wrist and they struggled for control of the gun. Latif tripped over some furniture, allowing the accused to get hold of the gun. The accused testified that he was in fear of his life when Latif lunged at him attempting to recover the gun. As Latif lunged at him, the accused pulled the trigger, the pistol fired, and Latif fell onto the floor clutching his chest. The accused grabbed the drugs and the pistol, ran down the stairs and drove away in his car.

17The accused testified that as he ran down the stairs, he shouted “call 911”, believing H.B. was somewhere in the apartment. I accept the Crown’s position that the defence, in the course of cross-examining H.B., should have put the suggestion to H.B. that the accused shouted, “call 911”. H.B. testified that it was the wounded Latif who told her to call 911. As noted, H.B. did place a 911 call at 3:52:52 p.m. In the circumstances, I am not persuaded that the accused shouted “call 911”. On the other hand, on the evidence of both H.B. and the accused, Latif was wounded and in distress after the shooting, but he was certainly alive. The accused had sole control of the gun after shooting Latif. If it had been the accused’s intention to kill Latif, either before he entered the apartment or after the attempted robbery, he had an opportunity to do so. Instead he ran away.

18In the accused’s version of events in this altercation, being the only version before the court, it would be fair to conclude, as I do, that a spontaneous physical altercation developed between these two men in the course of the robbery and neither had any apparent intention to kill.

19I would add that there was no expert ballistics evidence or expert medical evidence before the court. It would have been inappropriate to draw inferences about the accused’s intentions in discharging the handgun based on the unknown number of shots fired or the characteristics of the weapon or the injuries sustained. Latif’s hospital records were filed as business records but were not otherwise the subject of evidence nor discussed in closing argument.

Self-Defence

20I agree with the Crown’s submission that even on the accused’s version of events, an important factual issue arises as to the necessity for the accused to have used deadly force by shooting Latif, once he had succeeded in getting hold of the pistol during the fight. Section 34 (1) of the Criminal Code, which defines the defence of self-defence, provides that a person is not guilty of an offense if they believe on reasonable grounds that force or the threat of force is being used against them, that the act constituting the offense is committed for the purpose of defending or protecting themselves and is reasonable in the circumstances. Section 34 (2) provides a non-exhaustive list of considerations in determining whether the accused’s actions were reasonable. Relevant to the present case, these considerations include the nature of the force or threat, the imminence of the threat of force and the possibility of other available means to deal with the threat, and whether either party used a weapon.

21I find that on the accused’s version of events, which I consider plausible and which was the only narrative of events before the court, he was wrestling Latif for the control of the .45 calibre pistol and once he gained control was then being lunged at by Latif in an effort to regain control of the weapon. The accused believed his life was in imminent danger in the circumstances of this armed robbery. Discharging the pistol at Latif was objectively reasonable. Significantly, the accused could have and yet did not fire additional bullets once Latif was wounded and no longer attempting to regain control of the pistol. In these circumstances I cannot be satisfied beyond a reasonable doubt that the accused was not acting in self-defence. Moreover, the evidence does not support the accused having the requisite intention to kill.

Post-Offence Conduct

22Considerable time was spent examining the accused’s post offence conduct. This evidence was important to the Crown’s case in order to establish the identity of the accused as the shooter, but once he admitted this in his testimony, the post offence conduct evidence shed little light on the circumstances of the shooting incident. The accused seems to have done what one might expect of a drug dealer who had just shot someone in the course of a drug deal and was being pursued by police. He initially hid in his apartment, he monitored the online media, he identified that a warrant had been issued for his arrest, he hid out for several days in Toronto, he put out the word that Latif was “a rat” to discredit him and he set about trying, personally and through his friends, to contact Latif and Latif’s friends to “fix” the situation and to pay protection money to Latif’s friends in the regional jail who might otherwise be a threat to the accused after he was arrested and incarcerated.

23The Crown’s careful cross-examination of the accused on his post offence activities served to show that he was a sometimes confused, unreliable witness who was prepared to conspire to mislead the police and to otherwise protect his own interests. His accusations about Latif being “a rat” were tactical and seem to have gained the accused considerable leverage in the criminal sub-culture. On the other hand, there was nothing in the accused’s post offence conduct to undermine his testimony that he was robbed by Latif, who was wielding a gun and that he was in fear of his life when he shot Latif. As noted, the accused’s narrative of the struggle between Latif and himself remains the only narrative before the court and remains quite possibly true.

The Weapons Charges

24The accused testified that once he had shot Latif with the handgun and Latif fell to the ground, he retained or took possession of the handgun and ran out of the apartment. He went to his car and drove away. He was still in possession of the weapon as he drove back to his own apartment. On arrival, he testified that he threw the handgun and the drugs he had with him into a river which flows behind his apartment building. In other words, on his own evidence, starting immediately upon his fleeing the scene of the shooting, he was in possession of a concealed and loaded, restricted firearm; namely a .45 calibre handgun.

25The formal admissions (exhibit 13) recite that “19. The .45 calibre handgun used to shoot Mr. Diriyeh falls under the definition of a “restricted firearm” under section 84 (1) of the Criminal Code and 20. Mr. Yaheya Benamiar is not licensed to possess or use a .45 calibre handgun and does not hold a registration certificate for same.”

26I accept the accused’s evidence that he took possession of the handgun, as described above and dealt with it in the manner described. Accordingly, I am satisfied beyond a reasonable doubt that the weapons charges, being counts 8, 9, 10 and 11 of the indictment, have been proven and there will be a finding of guilty on counts 8, 10 and 11. Count 9 is stayed on the basis of the Kienapple principle.

Conclusion

27For the reasons set out. previously, the accused is found not guilty on counts 1 through 7 of the indictment.