COURT FILE NO.: CR-20-70000153-00MO

DATE: 2021-06-03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SAMIR ADEM AND SALMAN AHMED

Counsel:

P. Zambonini and M. Townsend, for the Crown

R. Craig Bottomley and A. VanderHeyden, for Mr. Adem

A. Herscovitch, for Mr. Ahmed

HEARD: 30 April 2021

WARNING:

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY –

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(3) FAILURE TO COMPLY WITH ORDER — Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

S.A.Q. AKHTAR J.

Upon application for certiorari and mandamus to set aside the order of Justice Michael Callaghan of the Ontario Court of Justice dated 27 November 2020.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] On 12 December 2018, Jonathan Gayle was shot dead in his car. Video footage showed Mr. Gayle’s Honda Civic swerved off the road and hit a tree. Two men decamped from the passenger side and were later traced, identified and subsequently charged with Mr. Gayle’s murder.

[2] Samir Adem and Salman Ahmed were committed for trial on the charges of second degree murder. The Crown argues that this was an error. It applies for orders of certiorari and mandamus arguing that the preliminary inquiry judge was jurisdictionally obliged to commit the accused on charges of first degree murder on the basis of unlawful confinement.

[3] The following reasons explain why I agree.

The Allegations

[4] The Crown alleges that on 12 December 2018 Mr. Adem and Mr. Ahmed tried to rob Mr. Gayle as he was driving by placing a gun to his head and demanding his car. Mr. Gayle physically resisted as the car was in motion. His efforts were in vain: he was shot three times through the torso and died at the wheel of his car, which came to a stop when it veered off Islington Avenue in the city of Toronto and hit a tree.

[5] Later that evening, the respondents met up with a group of associates which included Adil Zeno. At some point, the respondents told Mr. Zeno they had killed a man whilst trying to rob him of his car.

[6] By coincidence, Mr. Zeno was the subject of an undercover operation delving into an unrelated murder from 2016. Officers sought to befriend Mr. Zeno to gain his confidence in the hope of obtaining information about the 2016 homicide.

[7] This plan produced an unexpected result: Mr. Zeno told the officers that “friends” had confessed to a murder when they attempted rob the victim of his car. Mr. Zeno’s comments were secretly audio taped and played at the preliminary inquiry. When Mr. Zeno recanted their truth, claiming that he had lied to the police, the Crown successfully applied for their admission under the principles set out in R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740 (“K.G.B.”).

The Evidence at the Preliminary Inquiry

[8] There is no dispute that there was sufficient evidence to commit the accused for second degree murder.

[9] The Crown led evidence of video surveillance showing:

• Mr. Gayle’s car in motion and slowly swerving off Islington Avenue and hitting a tree in a driveway

• Two men fleeing the car from the passenger side, returning and one of the men dropping a jacket on the road

• Both men attending an area of a parking garage where the firearm used in the shooting was found

[10] The Crown also adduced:

• Forensic evidence showing Mr. Adem’s DNA on the firearm and Mr. Ahmed’s fingerprints on the bag in which it was found

• Mr. Adem’s DNA found under Mr. Gayle’s fingernails

• Mr. Adem’s disposal of a coat upon which Mr. Gayle’s DNA was discovered

• High resolution images of the men tracked from the car and showing each man’s face, which the preliminary inquiry judge concluded could be used to identify them as the accused

[11] The Crown’s final key piece of evidence consisted of Mr. Zeno’s out of court statements.

[12] To place those statements in context it is worth recounting the chronology of events.

[13] “Project Sidetrack” began on 11 December 2018. Its primary purpose was to investigate an unrelated murder which occurred in 2016. Police targeted Mr. Zeno by pretending to be part of a marketing scheme offering Mr. Zeno the spoils of a fictitious competition, which included complimentary visits to a casino. When officers met with Mr. Zeno they surreptitiously recorded their conversations with him in the hope of obtaining information on the 2016 murder.

[14] On 12 December 2018, at approximately 5:30 p.m., Mr. Gayle left an appointment with his spiritual adviser. Some twenty minutes later, Mr. Gayle sent a text message to a friend. Around 6:00 p.m., Mr. Gayle was found slumped in the driver seat of his blue Honda Civic after it rolled to a stop against a tree at 2063 Islington Avenue. In a post mortem examination, doctors concluded that Mr. Gayle had been shot three times in his torso and died from his wounds.

[15] Police obtained video evidence showing Mr. Gayle’s car driving north on Islington Avenue and slowly veering off to the right, mounting the curb, crossing a lawn and hitting a tree before coming to a halt. Two men emerged from the passenger side of the car, and ran into a wooded area before returning to the car to look for something. One of the men threw his jacket to the ground.

[16] Both men were tracked through video surveillance to 340 Dixon Avenue and seen to enter the parking garage and repeatedly access a corner of the lot out of range of the cameras where the police later found a handgun. (On examination, the handgun was determined to be the weapon used to kill Mr. Gayle. Samples of DNA located on the gun were sent for testing and found to belong to Mr. Adem).

[17] The respondents were subsequently captured meeting a number of individuals, including Mr. Zeno, in the lobby of 340 Dixon Road. The respondents, Mr. Zeno, and another male went to a “Hav A Nap” motel in Scarborough where Mr. Zeno rented a room for the night. En route, Mr. Zeno purchased a bottle of whiskey at an LCBO.

[18] On 17 December 2018, Mr. Zeno met with Project Sidetrack officers as the undercover operation continued. The officers found him in an excited mood as he revealed details of a murder committed by his friends in a robbery gone wrong. Mr. Zeno’s recorded comments were played at the preliminary inquiry.

[19] Mr. Zeno told officers that one of the assailants had put a gun to the victim’s head and tried to take his car. He described this conduct in the following manner: “The youth is a big youth though, still I don’t know how he de-cocked the ting cause my, my boy put the ting on his head and tried to take his car”.

[20] Mr. Zeno indicated that a struggle took place and the assailant who pointed the gun ejected a “grain”. As they were wrestling, the assailant sitting in the back of the car shot Mr. Gayle. Mr. Zeno described the act as: “boom boom boom, three” signifying three gunshots. The physical evidence - unspent cartridges in the car and three bullet wounds in Mr. Gayle’s chest - was used by the preliminary inquiry judge as confirmatory evidence supporting the reliability of Mr. Zeno’s out of court statement.

[21] On 19 December 2018, at a subsequent meeting with the Project Sidetrack officers, Mr. Zeno repeated his account telling the officers that his friends went to rob Mr. Gayle but “he wasn’t having it”. Mr. Zeno added: “the guy literally wasn’t having it … The guy literally wasn’t having…. Imagine a the nigger puts the whole thing to your face…. I’ll give it up. I respect the thing. I respect the gun. You know what I’m saying? It’s not who’s robbing me. It’s just the money”. Later on, Mr. Zeno added that “[I]t’s about the respect of the gun fam”.

[22] As noted, Mr. Zeno denied the truth of these statements at the preliminary inquiry although the judge found the K.G.B. criteria to be satisfied and permitted their use.

[23] At this hearing, the Crown concedes that Mr. Zeno provided the Project Sidetrack officers with differing accounts of the events in the car. For committal purposes, however, the truth of those accounts were not a matter for the preliminary inquiry judge as a witness’s credibility is solely within the purview of a jury at trial.

The Preliminary Inquiry Judge’s Reasons

[24] Neither respondent takes issue with the preliminary inquiry judge’s finding that there was sufficient evidence to commit the respondents for second degree murder. The only question in this case is whether there was some evidence of first degree murder.

[25] Before the preliminary inquiry judge, the Crown posited committal on first degree murder on the basis of unlawful confinement, which occurred at the moment one of the assailants put a gun to Mr. Gayle’s head.

[26] At para. 121 of his judgment, the judge outlined the factual matrix of the Crown’s argument explicitly referring to Mr. Zeno’s statement regarding the use of the gun.

[27] However, the judge found there was no reasonable inference that Mr. Gayle was unlawfully confined. Making that finding, said the judge, would be the result of speculation on what had happened in the car.

[28] At para. 122 of his reasons, he stated:

On the evidence before the court I am unable to find a reasonable inference the Mr. Gayle was forcibly confined that does not require speculation. I conclude that there is an evidentiary gap which leaves the inference unsupportable. Being shot in the course of a robbery in a vehicle does not on its own lead to a reasonable inference that the victim was forcible confined even if it was preceded by a brief struggle.

[29] After reviewing and distinguishing the cases advanced by the Crown to demonstrate an evidentiary basis for a committal on first degree murder, the judge concluded, at paras. 128-130 of his reasons:

In the case before me there is no evidence of how the defendant’s entered Mr Gayle’s car. There is no evidence of the defendants directing Mr. Gayle to drive anywhere or do anything. The evidence before the court points to an attempted robbery that quickly turns into a shooting when Mr Gayle offers resistance.

I can envision hypothetical scenarios that could establish forcible confinement. But possible scenarios have to be tethered to facts before the court in order to give rise to reasonable inferences. The question of course for a preliminary inquiry is whether, based on the evidence presented, there is a reasonable inference available to the Crown that Mr Gayle was the subject of domination or forcible confinement separate and distinct from the act of murder.

Based on my application of the law to the evidence led at this preliminary inquiry, I find that the Crown has not led sufficient evidence upon which a properly instructed jury could reasonably infer that Samir Adem and Salman Ahmed are guilty of the first degree murder of Mr. Gayle by operation of s.231(5)(e).

Positions of the Parties

[30] The Crown submits that the preliminary inquiry judge committed jurisdictional error by failing to commit the respondents for first degree murder. Its argument depends solely on “the gun to the head” scenario. When that occurred, the Crown argues, Mr. Gayle must have been unlawfully confined.

[31] On the other hand, the respondents argue the judge made no error in finding that there was no evidence of unlawful confinement. Further, they submit that even if the gun to the head evidence was capable of constituting unlawful confinement, this act was inherently part of a robbery and the murder itself. Finally, the respondents argue that even if an error occurred, the judge did not err in excess of jurisdiction.

LEGAL PRINCIPLES

The Test for Committal

[32] The Criminal Code, R.S.C. 1985, c. C-46, provisions relating to committal can be found in s. 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.

[33] In United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080, the Supreme Court of Canada instructed that sufficient evidence of criminal charges upon which a reasonable and properly instructed jury could convict, mandated committal of an accused to stand trial on those charges.

[34] 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.

[35] The preliminary inquiry judge is permitted to engage in a “limited weighing” exercise when the Crown relies upon circumstantial evidence to justify committal. When it does, the judge cannot draw inferences from facts or assess credibility but may evaluate “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.

[36] 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. It is also important to note that, on review, the preliminary inquiry judge’s determination of the sufficiency of the evidence is entitled to the greatest deference: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48.

[37] However, the preliminary inquiry judge must consider the “whole of the evidence” tendered during the preliminary inquiry as it is clear that “Parliament never intended to allow decisions on the discharge of an accused to be made without full regard to all of the evidence”: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 18.

[38] At the same time it is not a jurisdictional error “for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b)”: Deschamplain, at para. 23.

[39] In Sazant, at para. 25, the Supreme Court of Canada identified 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.

WAS THERE SUFFICIENT EVIDENCE OF UNLAWFUL CONFINEMENT?

The Legal Principles of Unlawful Confinement

[40] Section 231(5) of the Criminal Code classifies some second degree murders as first degree, resulting in a mandatory life sentence with a significantly increased mandatory minimum parole period.

[41] In this case, the Crown seeks to prove first degree murder through the operation of s. 231(5)(e) which reads:

231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(e) section 279 (kidnapping and forcible confinement); . . .

[42] Unlawful or forcible confinement was defined in R. v. Luxton, 1990 83 (SCC), [1990] 2 S.C.R. 711, at p. 723, as the use of “physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another”. See also: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), at p. 475.

[43] In R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618, at p. 633, the Court explained the distinction between the two levels of murder as resulting from the “continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder”.

[44] In R. v. Kimberley (2001), 2001 24120 (ON CA), 56 O.R. (3d) 18 (C.A.), at para. 107, the court, citing Luxton, clarified the position that “if in the course of a continuous sequence of events an accused commits the crime of unlawful confinement and chooses to exploit the position of dominance over the victim resulting from that confinement to murder the victim, then the accused has committed first degree murder as defined in s. 231(5)(e). The purpose of the confinement is not relevant”.

[45] The murder and unlawful confinement must be linked both temporally and causally to make “the entire course of conduct a single transaction”: Pritchard, at para. 35; Kimberley, at para. 106; R. v. Alexis, 2020 ONCA 334, at para. 18.

[46] The court in Kimberley also went on to confirm that s. 235(1)(e) required two separate acts within the same sequence of events and that a confinement inherent in the act of killing did not constitute first degree murder: at para. 108. See also: R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at paras. 50-53; R. v. Smith, 2015 ONCA 831, 344 O.A.C. 22, at para. 11.

[47] In Pritchard, at para. 24, the court appeared to indicate that the unlawful confinement in the s. 231(5)(e) context required that the confinement take place for “a significant period of time”. However, in Parris, at para. 61, Watt J.A., writing for the court explained that:

The phrase "any significant period of time" appears in connection with the description of the unlawful confinement component of s. 231(5)(e) in paragraph 24 of Pritchard. When read together with other portions of the same judgment, it seems clear that "significant" is used synonymously with "confinement not limited to what was integral to the particular act of killing". Neither Harbottle nor Pritchard requires the inclusion of "significant" or its functional equivalent for the purpose of jury instructions under s. 231(5)(e). Indeed, to some it may seem anomalous to include such wording when the predicate offence requirement can be satisfied by the preliminary crime of attempted unlawful confinement where no actual confinement would occur.

There was Sufficient Evidence of Unlawful Confinement

[48] As previously described, the judge found that any finding of unlawful confinement would require speculation.

[49] For the following reasons, I disagree.

[50] There was clear evidence that the events described by the respondents to Mr. Zeno - including the gun to Mr. Gayle’s head - occurred when Mr. Gayle’s car was in motion. This leads me to reject the defence suggestion that holding Mr. Gayle at gunpoint to take the car amounts to an order to get out of the car.

[51] When the gun went to Mr. Gayle’s head and the respondents told him they were taking his car, Mr. Gayle was unlawfully confined. By committing these acts the respondents assumed a position of dominance over Mr. Gayle and effectively restricted his movements and liberty against his will.

[52] Nor do I agree with the respondents’ position that these events amounted to a robbery “gone wrong”, with the gun to Mr. Gayle’s head being inherent in the act of his killing.

[53] The respondents’ conduct comprised two distinct acts forming part of a series of events that resulted in Mr. Gayle’s death: the gun to the head, and shooting him when he resisted.

[54] In R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, the appellant planned a home invasion robbery of a drug dealer’s residence with two accomplices. When they entered the dealer’s bedroom, McLellan brandished a gun. The robbers yelled for all of the occupants to get down on the floor and discard their mobile phones. Everyone did so. The robbers demanded to know where drugs and money were located. When one of the residents said, “I don’t know” and crouched downwards, McLellan shot him. Only a few seconds had elapsed between entry into the room and the shooting. A jury convicted McLellan of first degree murder.

[55] On appeal, McLellan argued that the verdict was unreasonable as the confinement of the victim was so fleeting that it could not constitute a distinct act. The Court of Appeal for Ontario rejected that submission holding that it was open to the jury to find unlawful confinement that went beyond the integral act of killing. Tellingly, the court observed, at para. 73:

The appellant seems to suggest that the "separate act" requirement should be interpreted more restrictively in cases of robbery and murder. I also reject this suggestion. As McLellan acknowledges, it is only if the robbery involves the requisite degree of domination that there will be a route to liability for first degree murder. To artificially restrict the availability of unlawful confinement within the meaning of s. 231(5)(e) when a killing occurs in the course of a robbery would lead to an absurd result, and could put the accused who confines, robs and kills his victim in a better position than if he had just confined and killed the victim.

[56] In Kimberley, the appellants were convicted of first degree murder after beating and robbing the deceased in an underground parking lot beneath her condominium building. The attack began when the deceased exited an elevator and continued as she was dragged 27 feet across the elevator lobby and down a ramp. There, she finally succumbed to the savage assault inflicted upon her. On appeal, the appellants argued they were wrongfully convicted of first degree murder as any confinement formed part of the planned robbery and was not a distinct act.

[57] The Court of Appeal for Ontario disagreed. Justice Doherty explained why, at para. 104:

I also cannot agree that the absence of any reference to robbery in s. 231(5) necessitates an interpretation of s. 231(5)(e) that excludes unlawful confinements committed in the course of a robbery. Robbery is a crime against both the person and property rights of the person. The organizing principle of s. 231(5) is the recognition that murders committed in the course of the unlawful domination of the victim are particularly blameworthy, and those who commit such murders are deserving of the greater punishment imposed for first-degree murder: R. v. Luxton, supra, at pp. 722-23 S.C.R., pp. 458-59 C.C.C. To the extent that the crime of robbery addresses property rights, its inclusion in s. 231(5) would be inconsistent with the underlying rationale of that section. However, to the extent that a particular robbery involves a crime of domination enumerated in s. 231(5), I see no reason why the murder which occurs in the course of that robbery becomes less blameworthy because the crime of domination was motivated by, furthered, or was otherwise incidental to a robbery. [Emphasis added]

[58] The court held the evidence showed the appellants restrained the deceased as she left the elevator placing them in a position of dominance over her. At para. 109, the court found that they had “no difficulty concluding that their conduct fits easily within the definition of unlawful confinement and falls four square within the kind of conduct Parliament sought to denounce by elevating certain murders to the status of first-degree murder”.

[59] In my view, both McLellan and Kimberley provide valuable guidance in this case.

[60] I find that the evidence shows that the respondents assumed a position of dominance over Mr. Gayle when the gun was pointed at his head. That conduct restricted his liberty and freedom of movement without his consent.

[61] I reject the respondents’ argument that finding unlawful confinement on these facts “would dictate that every attempted gunpoint robbery constitutes an attempted forcible confinement”. Putting a gun to Mr. Gayle’s head was a distinct act that occurred prior to his murder. The evidence provided by Mr. Zeno revealed that the respondents shot Mr. Gayle when he refused to comply with their orders and resisted. The struggle that ensued occurred as a result of the gun to the head and formed part of the same series of events. However, the shooting was a distinct act that resulted from Mr. Gayle’s non-compliance.

[62] Accordingly, there was evidence of two distinct acts. Like Kimberley, the unlawful confinement began when the gun went to Mr. Gayle’s head and he was told to hand over the car. The respondents sought to use their dominance to effect a robbery but when Mr Gayle fought back they used their continuing position of dominance to shoot him. Like McLellan and Kimberley, this was a robbery that resulted in a murder with an act of unlawful confinement separate and distinct from the shooting itself.

[63] For these reasons, I find the preliminary inquiry judge erred in finding no evidence of unlawful confinement.

The Preliminary Inquiry Judge Committed Jurisdictional Error

[64] As described, the existence of an error is not, of itself, sufficient to quash the order of discharge of the charge made by the preliminary inquiry judge.

[65] However, for the following reasons, I agree with the Crown’s position that the judge’s reasoning and conclusion falls within each of the areas of jurisdictional error identified in Sazant.

[66] First, in deciding that a finding of unlawful confinement would require speculation due to “an evidentiary gap”, the judge appeared to misunderstand the essential elements of the offence. This is reflected in the judge’s observation that there was no evidence of how the accused entered Mr. Gayle’s car or whether they directed him “to drive anywhere or do anything”.

[67] With respect, whilst this type of evidence may have helped in the unlawful confinement analysis, it was not necessary or required. All that was needed was some evidence that Mr. Gayle’s liberty to move had been curtailed, no matter how fleetingly. As I have explained, the act of placing a gun to Mr. Gayle’s head fulfilled this criteria and no speculation was required in this case.

[68] As a result, I find the judge’s misunderstanding of the elements of unlawful confinement led to a misapplication of the law and a failure to evaluate the evidence against the correct legal position.

[69] Secondly, where the evidence permitted for a number of reasonable inferences to be drawn from the evidence, the preliminary inquiry judge was obliged to consider only the inference most favourable to the Crown. That reasonable inference did not have to be probable or likely: R. v. Dwyer, 2013 ONCA 368, at para. 4.

[70] Here, the preliminary inquiry judge’s view that this “was an attempted robbery that quickly turns into a shooting” ignored the reasonable inference that the respondents had attempted to take control of the car as well as Mr. Gayle by placing a gun to his head. Such an inference leads to a finding that there was some evidence of unlawful confinement. The purpose of doing so was irrelevant: Kimberley, at para. 107. That inference is properly a matter for the jury’s determination.

[71] The respondents’ position that the judge considered the applicant’s argument and came to a different conclusion is another way of saying that he preferred an inference less favourable to the Crown.

[72] Finally, as noted, in concluding there was no evidence of unlawful confinement, the preliminary inquiry judge appeared to focus on the absence of evidence relating to the respondents’ entry into the car or directions given to Mr. Gayle rather than the central aspect of unlawful confinement advanced by the Crown: the gun to the head.

[73] The respondents are correct that the judge did allude to this evidence when listing the Crown’s submitted grounds for committal on first degree murder. However, there was no reference in his reasons when declining to commit on first degree murder. Nor was there any analysis of whether the specific act of placing the gun to Mr. Gayle’s head constituted the attempted or actual commission of unlawful confinement.

[74] Accordingly, I find that the judge failed to consider the whole of the evidence.

[75] I would end by saying that these are difficult issues to finally adjudicate but they are matters properly within the purview of the jury to decide.

[76] For these reasons, the Crown’s application for certiorari is granted. The judge’s order of discharge of first degree murder is quashed. I also conclude that if the preliminary inquiry judge had properly applied the law and considered all the circumstances, a committal order was inevitable. For these reasons, I also issue an order of mandamus, remit the matter back to the preliminary inquiry judge and direct him to commit the respondents for trial on the count of first degree murder.

[77] I wish to thank all counsel for the very helpful manner in which this hearing was argued and their skilful advocacy.

S.A.Q. Akhtar J.

Released: 3 June 2021