COURT FILE NO.: CR-20-0083
DATE: 2020 12 07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Colin Henderson for the Respondent
- and –
JERMAINE SMITH
Chris Rudnicki for the Applicant
HEARD: October 30, 2020
PUBLICATION IS BANNED PURSUANT TO S. 517(1) OF THE CRIMINAL CODE WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES
RULING ON APPLICATION TO QUASH COMMITTAL
[From the Committal for Trial ordered by the Honourable Justice Freeman January 29, 2020 on One Count of Second-Degree Murder]
D.E HARRIS J.
[1] The Applicant makes application for certiorari to quash an order to stand trial for second degree murder made by Justice Freeman on January 29, 2020.
THE BASIS OF THE APPLICANT’S LEGAL ARGUMENT
[2] In this case, there was a lack of consistency between the two key eyewitnesses to the shooting of the deceased. The thesis of the Applicant’s argument is based on the legal proposition that “if there is one dissimilar feature there is no identification” (see Chartier v. Quebec (Attorney General), 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474, 48 C.C.C. (2d) 34 (S.C.C.) at p. 494 (S.C.R.); R v Boucher (2000), 2000 CanLII 3270 (ON CA), 146 CCC (3d) 52 (Ont. C.A.) at paras 14-21). I do not agree with the Applicant’s argument and would dismiss the application. In my opinion, the aphorism relied upon, imported from the realm of eyewitness identification evidence, is inapplicable to the evidence in this case. The premise is based on a misunderstanding between the nature of eyewitness identification evidence and, a case like this one, in which the Crown case is founded on circumstantial evidence of identity.
[3] Eyewitness identification evidence is a notoriously unreliable form of evidence despite having the appearance of being simple and compelling. The case law and popular lore treating eyewitness identification is voluminous. Particularly when unsupported by circumstantial evidence, it provides a potentially dangerous foundation for a finding of criminal guilt. See R. v. Hay, 2013 SCC 61, [2013] 3 SCR 694 at paras. 40-42; R. v. Reitsma, 1998 CanLII 825 (SCC), [1998] 1 S.C.R. 769 rev’g (1997), 1997 CanLII 3607 (BCCA), 97 B.C.A.C. 303; R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, at pp. 844-845.
[4] Eyewitness identification evidence is direct evidence: An eyewitness points and says, “That is the man.” No inference drawing is involved; it is purely inductive. The case against Mr. Smith is not an eyewitness identification case. There were no line-ups held by the police and no question of the accurate recognition of the assailant’s face or other features. One witness knew the Applicant and could identify him. He did not see him shoot the deceased but there were inferences available from his evidence incriminating the Applicant as the shooter. The other witness saw the shooting but could not provide a particularized description or an eyewitness identification of the shooter.
[5] As the preliminary hearing judge recognized at paragraph 3 of her reasons, the case against Mr. Smith was entirely circumstantial. Was there a reasonable inference available that the Applicant was the person who shot the deceased? The “one dissimilarity is enough to preclude the accused’s guilt” line of authority from the eyewitness identification case law is inapplicable. The classic pitfalls of eyewitness identification are not present in this case.
[6] In a circumstantial case, there can be any number of inconsistencies, false starts, loose ends and unresolved questions. Sundry mistakes, discrepancies and inaccuracies often litter a circumstantial trial where the issue is identification of the perpetrator. A circumstantial case is often a hodgepodge. No matter. The ultimate question is whether there is a coherent narrative that can be pieced together from the various witness accounts capable of leading a jury to the final inference that the guilt of the accused is the only reasonable conclusion. Here there was sufficient evidence at the preliminary hearing to say that an inference that the Applicant fired the gun that killed the deceased was reasonably available.
THE EVIDENCE FROM THE PRELIMINARY HEARING
[7] Santasha Wright arrived at an after-hours bar in Brampton, Masta’s Lounge, on April 15, 2017 at about midnight with two friends. Ms. Wright knew the deceased Jordan Buchner but did not know the accused. She saw an argument within a group of men. A man with braids and a man with dreadlocks were on one side; a short man with a ponytail and six or seven other men were on the other. After a short while, she went outside to have a cigarette and saw her friend Jordan, the deceased, arrive in a taxi. He went inside the club and soon after came back outside, now part of the group of six or seven men arguing with the man with braids and the man with dreadlocks. Jordan picked up a beer bottle and hit the man with dreads over the head. The man staggered back; Wright saw him bleeding from his head. She then saw him pull out a gun. He then dropped the gun, picked it up again and pointed it at the men running away. She and others at the scene told him to stop.
[8] Wright testified that the man with braids was angry with the man with dreads for not retaliating. He was saying “Just shoot.” Soon after, the man with braids took the gun from the man with dreads and pointed the gun at the people running away. He then shot it four or five times. She saw the deceased fall behind a car. It was conceded at the preliminary inquiry that the deceased was killed by gunshot and was found outside Masta’s Lounge.
[9] The other key witness was Adrian Roberts. He knew the Applicant. Roberts wore his hair in dreads. He arrived at the bar after 2:00 am. He carried a loaded firearm with him in his waistband for protection. He had an ongoing feud with a man by the name of Cam who was also at the club. There was a confrontation outside the club. Cam became aggressive and was joined by two or three others. Roberts punched Cam in the face. Someone punched Roberts in the face; scared, he drew his firearm and fired a shot into the air. The men scattered and Roberts began walking away, intending to leave the area.
[10] Roberts testified that he heard yelling and saw the Applicant come up to him. The Applicant grabbed Robert’s handgun. That was the first time he had seen the Applicant that night. The Applicant said, “What the fuck are you doing?” Roberts walked off. He then, within 20-30 seconds, heard four or five shots being fired. He testified that he did not see who fired the shots or where they were aimed. He turned and saw a group of people yelling and crowding around the Applicant. He testified that he took his firearm from the Applicant and left.
[11] Roberts was arrested in Sarnia a few days later on drug-related offences. Initially charged with accessory after the fact to murder and a number of firearm offences, he ultimately pled guilty to possession of a firearm in relation to the events of April 15, 2017.
[12] Another witness said that he saw a man with dreadlocks arguing with a man before pulling a gun and shooting at him two or three times. The man who was shot at ran and then fell around the corner.
THE APPLICANT’S ARGUMENT
[13] The Applicant identifies six “core dissimilarities” between the evidence of Roberts and Wright and equates these to the “key difference” in the Boucher case: a stripe on the accused’s pants seen by one witness but not by the other. Like in that case, it is argued that therefore, there is not a scintilla of evidence of identity against the Applicant.
[14] The discrepancies argued by the Applicant were as follows: 1. Wright said the shooting was at about 1 a.m.; Roberts said he did not arrive until sometime after 2 a.m. and the shooting would have taken place close to 3 a.m.; 2. The two witnesses had totally different accounts of the argument which took place inside the bar, prior to the shooting; 3. Wright said the argument outside the bar involved six or seven men, the deceased amongst them; Roberts said that there were only two or three men and the deceased was not involved; 4. Wright said that the man with dreads [Roberts] was struck over the head with a bottle; Roberts said he was punched and there was no bottle; 5. Wright said that Roberts dropped the gun on the ground and then picked it up, pointing it at the people running but never firing; Roberts said that after being punched, he fired the gun once in the air, he did not point it at anyone; and 6. Wright said that she looked Roberts in the eye after he was hit with the bottle; Roberts was shown a picture of Wright after the fact and said that he had never seen her before.
[15] The configuration of the evidence of identity in this case and in Boucher are completely different. Justice Rosenberg held in Boucher at para. 19,
In view of the dissimilar feature of the pants, there was no identification, merely a resemblance. In the absence of some other inculpatory evidence, a resemblance is no evidence.
[16] The evidence in criminal cases comes in a variety of different varieties and forms. In Boucher the evidentiary content was a mix of eyewitness identification and circumstantial inferences. One Appellant was seen by a witness to be wearing pants with a white stripe during the bank robbery but minutes afterwards, another witness said his pants did not have a stripe. In the context of the total evidentiary picture, that one seemingly small discrepancy took on disproportionate significance.
[17] The nucleus of the incriminating evidence in this case was Roberts’ direct evidence that the Applicant took the gun from him, that he heard four or five shots 20-30 seconds later, and that soon after he took his gun from the Applicant’s possession. From this direct evidence, the Crown argued a circumstantial inference should be drawn that the Applicant, in possession of the gun, shot the deceased with it. There was opportunity and there was motive based on the evidence of an earlier altercation between the two men.
[18] The Wright evidence only added what had occurred just before the shooting and then the evidence, of some assistance on the identity question, that she saw the shooting take place. There was dissonance with the Roberts’ evidence in some of the details but that is not unusual in a case in which the witnesses recount what they saw and heard in fleeting moments late at night outside a bar.
[19] Citing R v DesChamplain, 2004 SCC 76 (S.C.C.) at para 18, the Applicant argues that a preliminary inquiry judge is not permitted to pick and choose through evidence, such as the evidence of Roberts. With respect, that is not an accurate statement of the holding in DesChamplain. The principle of law from that case is simply that a preliminary inquiry judge, in deciding whether to commit an accused to trial, must consider the whole of the evidence. Justice Major held at the beginning of paragraph 18: “Section 548(1)(b) [of the Criminal Code] requires the preliminary inquiry judge to consider ‘the whole of the evidence’ that ‘has been taken’ during the preliminary inquiry.”
[20] Considering the whole of the evidence is not the same as accepting the whole of the evidence. That a preliminary judge must accept all of the evidence would be absurd. A preliminary hearing judge must, of necessity, pick through evidence in a circumstantial case. A “limited weighing” is unavoidable to determine whether an inference advocated by the Crown is reasonable and available: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.) at para. 23. Further, it is important to remember that in this process, the Crown’s case must be taken at its highest: R. v. Dwyer, 2013 ONCA 368 at para. 4. No regular weighing of evidence like that which takes place at trial is permissible.
[21] Here, the central evidence of Roberts, with or without the Wright evidence, leads to a reasonable inference that the Applicant shot the deceased. He had possession of Robert’s gun just before the shooting and retained possession after the shooting. There was no evidence of another gun at the scene. The Applicant makes some cogent arguments about the confusing, disjointed, inconsistent and inconclusive nature of the two witnesses’ evidence in this case. But those are arguments for trial, not for the preliminary inquiry.
[22] Here, it cannot be said that there was no evidence with respect to the essential legal elements for murder: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 (S.C.C.) at para. 21. There were reasonable circumstantial inferences available to prove on a prima facie basis both the act and the mental element for second degree murder
[23] The application for certiorari is dismissed.
D.E HARRIS J.
Released: December 7, 2020
COURT FILE NO.: CR-20-0083
DATE: 2020 12 07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JERMAINE SMITH
Applicant
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: December 7, 2020