COURT FILE NO.: CR-20-30000097-00MO CR-20-30000098-00MO CR-20-30000116-00MO
DATE: 2021-07-15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – DONANDO BAUGH, LEX REECE AND ALEXANDER LIBURD
COUNSEL: J. Bruno, for the Crown T. Rodocker, for Mr. Baugh H. Aly, for Mr. Reece M. Webster, for Mr. Liburd
HEARD: 25 June 2021
RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.
S.A.Q. AKHTAR J.
On application for certiorari quashing an order made by Justice Laurence Feldman of the Ontario Court of Justice on 3 July 2020 committing the applicants to stand trial at the Superior Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The applicants were committed to stand trial on charges of conspiracy to commit murder, attempted murder, aggravated assault and related firearms charges in relation to two victims. One of the victims was Eid Hassan, the other an unknown male, who was referenced at the preliminary inquiry as John Doe.
[2] The applicants do not dispute there was sufficient evidence to commit them for trial in relation to Mr. Hassan. However, they argue there was no evidence in relation to John Doe. Accordingly, they apply for certiorari to quash the order of committal.
Background Facts
[3] On 10 December 2018, Ivelin Pentchev was driving his taxi in downtown Toronto when he picked up Mr Hassan and John Doe. Mr. Pentchev drove them to an apartment building situated at 30 Gilder Drive in the city of Toronto. Mr. Hassan entered the lobby of the building but returned shortly afterwards asking Mr. Pentchev to take them to the next apartment building at 31 Gilder Drive. The taxi arrived there around 8:53 p.m.
[4] Meanwhile, at roughly the same time, the applicants left 31 Gilder Drive but returned approximately one minute later parking their car, a Mazda, in front of the building at 8:55 p.m. before going back inside.
[5] At 9:09 p.m., the applicants re-emerged and headed to Mr. Pentchev’s taxi. Mr. Hassan was seated in the rear and John Doe in the front passenger seat. Mr. Reece and Mr. Baugh stood either side of the taxi and when Mr. Liburd walked past, they spoke to Mr. Hassan.
[6] Mr. Pentchev heard one of the applicants say: “we don’t want to deal with these fucking niggers” (the racial slur). Mr Pentchev testified those words were uttered when the applicants were looking in the direction of his cab and its occupants. The applicants got into their Mazda and drove onto Gilder Drive apparently leaving but then made a U-turn on Midland Avenue. The Mazda arrived back at 31 Gilder Drive through the back entrance driving to the front of the building and stopping in front of the taxi at an angle, blocking its path.
[7] The applicants exited the car with firearms drawn and surrounded the taxi. Mr. Pentchev said that one of the men pointed a firearm at him and said: “Don’t move”.
[8] All three applicants proceeded to the rear of the taxi. Mr. Baugh stood at the rear driver side of the car and another of the applicants walked round to the rear passenger side. All of the applicants opened fire. A video played at the preliminary inquiry showed 4 muzzle flashes.
[9] One bullet hit Mr. Hassan in the back and he screamed in pain. In an attempt to escape, Mr. Pentchev hit the accelerator and crashed into the Mazda. The shooting continued as Mr. Pentchev drove off at high speed. The applicants gave chase in their Mazda and two more shots were fired at the taxi.
[10] As Mr. Pentchev passed a police station, Mr. Hassan asked him to stop allowing Mr. Hassan to exit. Before he did so, he passed a wrapped package to John Doe who alighted the car and was not seen again. Mr. Hassan headed into the police station to report the incident and be taken to hospital to treat his wounds.
[11] There was no dispute at the preliminary inquiry that Mr. Hassan had suffered a single gunshot wound to the right posterior upper back and a fracture of the left shoulder blade. Nor was there any controversy that Mr. Hassan required resuscitation at the hospital trauma bay and was admitted to the intensive care unit.
[12] The applicants do not contest committal on the counts concerning Mr. Hassan. However, they argue that there was no evidence adduced at the preliminary inquiry of the counts alleging a conspiracy to commit murder, attempted murder and discharging a firearm with intent in relation to John Doe.
LEGAL PRINCIPLES
[13] The Criminal Code, R.S.C. 1985, c. C-46, 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.
[14] The test for committals is found in United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080: 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.
[15] 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.
[16] When the Crown relies on circumstantial evidence, the preliminary inquiry judge is permitted to engage in a “limited weighing” exercise. In doing 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.
[17] 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. That reasonable inference does not have to be a probable or likely inference: R. v. Dwyer, 2013 ONCA 368, at para. 4. All that is required is that the inference is reasonable and logical: R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 OR (3d) 321, at para. 40.
[18] 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.
[19] 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. If, on the other hand, there is a scintilla of evidence, the judge must commit: R. v. Hickey, 2007 ONCA 845, at para. 5; R. v. Olubowale (2001), 2001 CanLII 24056 (ON CA), 142 O.A.C. 279 (C.A.), at para. 10.
[20] It is also important to note that, on review, the preliminary inquiry judge’s determination of sufficiency of evidence is entitled to the greatest deference. A reviewing court cannot overturn a preliminary inquiry’s judge’s decision simply because it would have reached a different conclusion. A reviewing court may only quash an order of committal if there is no evidence on an element of the offence: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at paras. 19, 48.
[21] 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.
DID THE PRELIMINARY INQUIRY JUDGE COMMIT JURISDICTIONAL ERROR?
[22] As noted, the applicants do not challenge the preliminary inquiry judge’s order to commit them for conspiring to murder, attempting to murder or discharging a firearm in relation to Mr. Hassan. Their argument focusses solely on the same offences in relation to John Doe.
[23] The evidence before the court can be summarised in the following manner:
• Mr. Hassan and John Doe were travelling together in the taxi. Both hailed the cab and both were driven together to the two locations at Gilder Drive. As the Crown points out, after being shot, Mr. Hassan gave John Doe a package.
• The applicants drove their car out of 31 Gilder Drive and returned to park directly in front of the taxi at an angle to block its path, suggesting that the applicants planned the shooting.
• All of the applicants fired their weapons at the taxi after surrounding it at the rear. More shots were fired as the taxi fled the scene and the applicants pursued it.
• The evidence shows that the applicants were acting in concert to shoot at the taxi.
• Even though they hit Mr. Hassan who screamed after being shot, they continued to fire at the taxi.
[24] These items clearly constitute evidence of a conspiracy to murder, attempted murder and discharging a firearm with intent. It makes sense that the applicants concede that the judge correctly committed them on these counts with respect to Mr. Hassan.
[25] The only question to be decided in this hearing is whether there was any evidence before the preliminary inquiry judge that the applicants fired at John Doe as well as Mr. Hassan. A scintilla of evidence that they did would satisfy the test for committal on the attempted murder, conspiracy to murder and discharge of firearm counts in relation to John Doe.
[26] I find that this question must be answered in the affirmative.
[27] The racial slur uttered by one of the applicants, and overheard by Mr. Pentchev, clearly referred to not wanting to deal with “these niggers”. In other words, there was animus directed towards more than one man. It must be remembered that these words were said as the applicants were looking in the direction of the taxi. The word “these” permits the reasonable inference that the applicants were talking about both men in the taxi, who it is admitted were black.
[28] These items of evidence in combination with the details previously outlined, particularly the continued shooting after Mr. Hassan had been hit, give rise to the inference that the applicants were shooting at both Mr. Hassan and John Doe with the intent to kill them.
[29] Although the applicants raise several issues about the physical evidence such as the location of shots that hit only the rear of the taxi indicating that the shooters were only aiming at Mr. Hassan, I disagree that this evidence warrants the quashing of the committal.
[30] As I have already acknowledged, multiple inferences can be drawn from a particular set of facts. However, only the most favourable inference to the Crown can be considered when deciding the issue of committal.
[31] The evidence I have outlined supports the preliminary inquiry judge’s conclusion that there was some evidence of animus and that the applicants were firing at both passengers in the car.
[32] The physical evidence advanced by the applicants in an effort to persuade this court that the preliminary inquiry judge came to the wrong conclusion is available to them when making their submissions to the jury. The ultimate decision of whether the applicants were firing at both John Doe and Mr. Hassan and missed or were intending to kill only Mr. Hassan is a matter reserved to the jury.
[33] For these reasons, the application for certiorari is dismissed.
S.A.Q. Akhtar J.
Released: 15 July 2021
COURT FILE NO.: CR-20-30000097-00MO CR-20-30000098-00MO CR-20-30000116-00MO
DATE: 2021-07-15
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – ALEXANDER LIBURD, DONANDO BAUGH AND LEX REECE
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.