COURT FILE NO.: CR -21-50000057-00MO

DATE: 20210809

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

COSMO JAMES AND DWIGHT JOHN

P. Zambonini, for the Crown

J.Wilton, for Mr. James

A. Monaco, for Mr. John

HEARD: 19 July 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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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 quash the order of discharge made on 23 March 2021 by Justice David Maylor of the Ontario Court of Justice.

FACTUAL BACKGROUND AND OVERVIEW

The Crown’s Case

[1] On 9 April 2019 Dwight John went to George’s Convenience Store at Jane Street and Queen’s Road in the City of Toronto. Security cameras inside the store show him standing in front of the cash desk whilst an acquaintance paid for purchased items. Shortly afterwards Cosmo James entered the store with two other men. It is clear from the video that Mr. John and Mr. James knew each other and appeared uneasy at each other’s presence. Mr. John very quickly exited the store and entered the passenger side of a grey car parked directly in front of the shop.

[2] He was followed almost immediately by Mr. James who, as he headed for the exit, drew a firearm from his pocket.

[3] Video cameras show that Mr. James peeked out of the door before stepping outside. He then immediately dived to his right onto the ground. At the same time, a cloud of smoke can be seen emerging from the grey car’s windscreen. What followed is described by the Crown as a “gunfight” in which both men shot at each other numerous times.

[4] Physical evidence suggests that 10 shots were fired from the car, whilst Mr. James continued to shoot at the car 7 times from his position on the ground. Numerous cartridges were strewn around where Mr. John sat in the front passenger side of the grey car.

[5] Mr. John’s car reversed out of the store parking lot but collided with another car. Additional cartridge cases later found on Jane Street and visible smoke recorded by the cameras would suggest that Mr. John continued to shoot at Mr. James after the car collision. Mr. John and the driver of the car alighted the vehicle and fled the scene with surveillance cameras tracking their route. Mr. John discarded a firearm which was later recovered. Forensic examination showed that the cartridge cases found in the car and on Jane Street were fired from this gun.

[6] Mr. James’ gun was never located but police discovered seven spent shell casings in the area in which he was firing shots. These were later determined to all have been fired from the same weapon. The grey car was also examined and found to have at least four bullet strikes on its passenger side.

[7] Both Mr. James and Mr. John, the respondents in this application, were charged with attempted murder, intentional discharge of a firearm, and associated firearms charges.

The Preliminary Inquiry Judge’s Reasons

[8] The preliminary inquiry judge found that the video evidence sufficiently identified Mr. John and Mr. James as the persons shooting at each other. He also held that there was sufficient evidence to commit both accused of intentionally discharging a firearm and related firearms charges. However, he discharged both respondents on the attempted murder charge.

[9] Although the preliminary inquiry judge found the respondents were shooting at each other, he concluded that the Crown had failed to adduce any evidence of the required mens rea for attempted murder, namely the specific intent to kill. The judge relied upon cases such as R. v. Rajanayagam [2001] O.J. no. 393 (S.C.), as authority that the offence of attempted murder required “some evidence on which the trier of fact may infer that the shooters intended more than the act of shooting each other”.

[10] The judge acknowledged the Crown’s submission that multiple shots were fired by both respondents but ruled that this did not provide a basis to commit citing the following reasons for his conclusion:

However, the number of shots fired does not necessarily lead to an inference of an intention to kill. In R. v. Chartrand 1987 MJ No. 464, Provincial Court, the eleven gunshots did not lead to a committal on attempted murder. The committal on attempted murder was quashed in Rajanayagam, a case of 17 gunshots. Moreover, the specific intention to kill is diminished by evidence of an errant bullet through the second storey window above the store.

The nature of the spontaneous random confrontation also detracts from the intention to kill, as opposed to foolhardy and dangerous reactions to a chance meeting in the middle of the day at a convenience store. For the most part, James returns gunfire towards the car in which John is seated. His associate also fires at the car. There is evidence of bullet strikes. to the car’s rear door and bumper, as well as the bottom of the front passenger door near the running board from one or both of the shooters.

Those shots do not lead to an inference of an intention to kill. This is not a case where the aim of the shooters reveals their intent. Instead, they chose to recklessly shoot through whatever was in their way – in other words, a windshield, windows and a motor vehicle – towards their targets. They shot at each other from a distance of several feet between them, rather than from close range. There is no evidence that the shots were near any vital parts of the anatomy in a way that might reasonably be expected to kill. There is no evidence of wounds that were life-threatening or potentially life-threatening. There is no evidence from the gunshots themselves of an intent to kill, nor is there any evidence of any plan, threat or motive to kill. As a matter of law I cannot conclude that there is evidence of an attempt to kill upon which committal can lie. The accused men will be discharged on the attempted murder counts.

[11] The Crown brings an application for certiorari and mandamus alleging that preliminary inquiry judge exceeded his jurisdiction by: improperly weighing the evidence; failing to prefer the most favourable inference to the Crown; failing to consider the whole of the evidence; and engaging in impermissible weighing of the evidence, thereby trespassing into the fact-finding determination reserved for the jury.

[12] The respondents submit that the preliminary inquiry committed no jurisdictional error and came to the correct conclusion that the Crown had adduced no evidence supporting the charge of attempted murder.

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 committal 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 “limited weighing” of the evidence. 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. A 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 O.R. (3d) 321 (C.A.), at para. 40. If the inferences advanced by the Crown are within the field of inferences that could be reasonably drawn, the preliminary inquiry judge must commit even though they would not draw those inferences themselves: R. v. Hawley, 2012 ONCA 528, at para. 10.

[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. However, the reviewing judge “does not simply redo the limited weighing of the evidence in which the preliminary inquiry judge was permitted to engage, nor attempt to determine the correctness of the preliminary inquiry judge’s decision”: R. v. Zamora, 2021 ONCA 354, at para. 12.

[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] In this case, the judge had the following evidence to consider:

• When both men entered the convenience store there was some evidence of tension between the two

• When Mr. John left, Mr. James followed and almost immediately drew his gun – only seconds after his meeting Mr. John and before exiting the store

• A total of 10 shots were fired from Mr. John’s position in and through the windscreen while Mr. James was standing only a few feet away

• Some of the bullets hit areas of the store where Mr. James had been standing before he dived out of the way

• Mr. James fired a total of seven shots at the car from a position on the floor

[23] It is trite law that “if a person acts in a manner which is likely to produce a certain result it generally will be reasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences”: R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, at para. 19.

[24] A reasonable inference to be drawn from the evidence is that there was animus between the respondents and they were shooting with an intent to kill the other.

[25] This was not a case like Rajanayagam where although 17 shots were fired, only three were at the victim and those were aimed at a non-vital organ of the body – the legs. Here, both shooters were aiming directly at the other.

[26] In R. v. Bains, [1985] O.J. No. 41 (C.A.), at para. 27, the Court of Appeal for Ontario observed that:

All firearms are designed to kill. A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at close range, it is every bit as deadly as a .50 calibre machine gun. It follows that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim. No other reasonable conclusion can be reached: a deadly weapon was used in the very manner for which it was designed - to cause death. It is appropriate to conclude that in these circumstances the gun was fired in order that it might fulfil its design function and kill. An element of surprise arises only if death does not occur.

[27] In R. v. Lafleur, [2000] O.J. No. 3961 (S.C.), the accused was committed on a charge of attempted murder after pointing a sawn-off shot gun towards the victim’s groin area and shooting him in the thigh. He argued that he was trying to scare the victim but not kill him. At the preliminary inquiry, the Crown showed evidence of animus towards the victim and the judge found sufficient evidence to commit on the charge of attempted murder. Then J. dismissed the accused’s certiorari application finding that the location of the wound and single shot was not determinative and wrote, at para. 15:

Counsel for the accused forcefully submitted that the location of the wound as well as the single shot is not only inconsistent with intent to kill but is rather consistent with an intent not to kill but merely with an intent to warn Young against further transgressions. Given the powerful nature of the weapon, the short distance at which it was fired and the proximity of the wound to the vital areas of the abdomen and the groin, I do not accept that the location of the wound is consistent only with an intent not to kill but merely with an intent to warn especially in circumstances where the shot was fired toward the middle of the body and not to the side or downward toward the feet or indeed into the ground.

Moreover, the fact of a single shot is not conclusive of an intent not to kill. No doubt the firing of more than one shot would have been more probative of the requisite intent but given the nature and power of the weapon, which was fired at close range, the discharge of such a weapon, near the vital areas of the victim, fairly gives rise to an inference of intent to kill when all of the evidence is viewed cumulatively.

[28] In finding no evidence of attempted murder, the preliminary inquiry judge committed jurisdictional error by impermissibly weighing the evidence and then choosing amongst the competing inferences, ignoring the inference most favourable to the Crown.

[29] For example, the preliminary inquiry took the “nature of the spontaneous confrontation” as detracting from the intention to kill “as opposed to foolhardy and dangerous reactions to a chance meeting in the middle of the day”. Another instance is the preliminary inquiry judge’s conclusion that the location of the bullet strikes and the shooters’ aim represent evidence that the shooters “chose to recklessly shoot through whatever was in their way”.

[30] With great respect, it is hard to understand why the spontaneity of the confrontation might even be a factor in weighing against the existence of an intention to kill. However, even if that were the case, an equally reasonable inference could be drawn that the chance encounter provided an unexpected opportunity for both men to kill each other. The same could be said for the location of the bullets. The mere fact that the shooters were shooting through any barrier does not mean that they were not intending to kill their target. It is equally reasonable that their recklessness in the manner in which they fired their guns stemmed from their intention to kill their victim.

[31] As noted in Arcuri, the judge was entitled to engage in a limited weighing of the evidence to determine the reasonableness of the inferences to be drawn: Zamora, at paras. 9-10. The preliminary inquiry judge exceeded that role in this case. The question of whether the forensic evidence shows the accused were shooting to kill or were otherwise “reckless” or “foolhardy” is a matter to be decided by the jury.

[32] A reasonable inference does not have to be a probable or likely inference: Dwyer, at para. 4. All that is required is that the inference is reasonable and logical: Katwaru, at para. 40. One of the reasonable inferences available from the evidence adduced at the preliminary inquiry was that when Mr. John and Mr. James shot multiple times at each other, they intended to kill.

[33] In choosing the inferences that he did the preliminary inquiry judge failed to prefer this inference, despite his obligation to prefer it as it was the inference most favourable to the Crown. In doing so, he committed jurisdictional error.

[34] I would also agree with the Crown that the preliminary inquiry judge committed an error under the third Sazant heading and failed to consider the whole of the evidence.

[35] The preliminary inquiry judge approached the evidence in a piecemeal fashion by parsing out segments such as the chance encounter, the location of the bullets, and the lack of life-threatening injuries. The judge failed to consider the evidence as a whole.

[36] There was evidence of animus depicted in the video including the immediate draw of the gun by Mr. James as Mr. John left the store, the damage to the store front where Mr. James had been standing when he exited the store, and the multiple gun shots continually fired by both men in an apparent gun duel. Some of this evidence was not even referred to by the judge when dealing with the issue of intent. None of it was considered in relation to each other and as a whole when determining whether there was sufficient evidence of attempted murder upon which a reasonable jury properly instructed could return a verdict of guilty.

[37] For these reasons, the Crown’s certiorari application is allowed and the order to discharge the respondents for attempted murder is quashed. As committal is inevitable, I also grant the Crown’s application for mandamus, return the matter to the preliminary inquiry judge, and direct him to commit both respondents to stand trial for attempted murder.

S.A.Q. Akhtar J.

Released: 9 August 2021