COURT FILE NO.: CR-21-10000104-0000

DATE: 20220831

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ABDULKADIR HANDULE

Applicant

Anna Tenhouse and Andrew Gibbons, for the Respondent

Dirk Derstine and Kristianne Anor, for the Applicant

HEARD: February 10, 11 and 14, 2022

RULING ON APPLICATIONS FOR DIRECTED VERDICTS

B.P. O’Marra J.

OVERVIEW

[1] The applicant faced a four count indictment as follows:

1. Abdulkadir Handule stands charged that he, on or about the 30th day of June in the year 2018, at the City of Toronto, in the Toronto Region did, commit first degree murder on the person of Jahvante Smart, contrary to section 235(1) of the Criminal Code.

2. Abdulkadir Handule stands further charged that he, on or about the 30th day of June in the year 2018, at the City of Toronto, in the Toronto Region did, commit first degree murder on the person of Ernest Modekwe, contrary to section 235(1) of the Criminal Code.

3. Abdulkadir Handule stands further charged that he, on or about the 30th day of June in the year 2018, at the City of Toronto, in the Toronto Region did, in committing an assault on Michelle Weir, wound, maim, disfigure or endanger the life of said Michelle Weir, and thereby commit an aggravated assault, contrary to section 268(2) of the Criminal Code.

4. Abdulkadir Handule stands further charged that he, on or about the 30th day of June in the year 2018, at the City of Toronto, in the Toronto Region did, with the intent to wound, maim, disfigure or endanger the life of Jahvante Smart, discharge firearm, namely a handgub, at Michelle Weir, contrary to section 244(1) of the Criminal Code.

[2] At the conclusion of the Crown’s case in chief the applicant sought the following directed verdicts:

Count 1- Discharge on first degree murder and commit on second degree murder.

Count 2- Discharge on first degree murder.

Count 3 and 4- Discharge on both counts.

[3] The Crown theory was that Mr. Smart was the target and intended victim of the shots fired by the applicant and a man referred to at trial as Black Hoodie. The Crown submits that Mr. Modekwe was struck by shots intended for Mr. Smart. Michelle Weir was wounded by a shot intended for Mr. Smart. The Crown submits that the applicant and Black Hoodie acted together with the intention of killing Mr. Smart and that the killing was both planned and deliberate. Likewise, the killing of Mr. Modekwe was intentional, planned and deliberate by resort to the legal concept of transferred intent. Michelle Weir was an unintentional victim of shots meant for Mr. Smart.

[4] The applicant submits that there is a complete absence of evidence of planning and deliberation in regard to the killing of Mr. Smart. Thus, the jury should be left to deal with second degree murder on count 1.

[5] The applicant submits that it is unclear who fired the shots that caused the death of Mr. Modekwe and the injuries to Ms. Weir. The Crown does not allege that either of them were the intended targets of the applicant and Black Hoodie. The applicant submits that there is no basis to find that the applicant is criminally liable for the death of Mr. Modekwe and the injuries to Ms. Weis by resort to the legal concepts of co-perpetrators or aiding and abetting.

[6] On February 14, 2022, I ruled that the applications were allowed in part. The trial and sentencing have now been completed.

[7] These are my reasons on the applications for directed verdicts.

THE EVIDENCE

[8] For the purposes of these rulings a brief overview of the evidence will suffice.

[9] Shortly before 8pm on June 30, 2018, gunfire erupted on a crowded Toronto street outside the popular nightclub Cube. There were three shooters and multiple shots fired. The incident left two men dead on the street. A woman who happened to be on the street at that time was wounded. Two of the three shooters fled the scene on foot. There is no dispute that the applicant was one of the two shooters who fled. The second shooter who appeared to be acting in tandem with the applicant has never been identified or apprehended. He was referred to throughout the evidence as “Black Hoodie”.

[10] The two men who were killed were Jahvante Smart, age 21, and Ernest Modekwe, age 28. Mr. Smart was the first person to fire shots in this incident. None of those shots struck anyone.

[11] One witness (Georgy Begidzanov) was working in security at Cube on June 30, 2018. He testified that he observed the applicant in two separate verbal altercations with Mr. Smart at the entrance to Cube. He claimed that the applicant threatened to shoot Mr. Smart and made a hand motion as if to reach for a firearm.

[12] The witness did not alert his manager or anyone else after he heard the alleged threat. He testified that a similar threat to shoot Mr. Smart occurred 15 or 20 minutes later. He took no action in regard to the second incident as such threats were “not a big deal”.

[13] Other evidence at trial, including video evidence, showed that the first alleged threat by the applicant occurred before Mr. Smart had arrived at Cube. In cross-examination the witness retracted some of his testimony and agreed it was possible he did not see the applicant make any gestures as if to reach for a firearm and he never saw a firearm. It was unclear by the end of his testimony whether he actually heard a threat being made. None of the other security officers outside Cube claimed to have heard any such threats.

[14] There is no evidence of any prior connection or contact between the applicant or Black Hoodie and Mr. Smart before the events of June 30, 2018.

[15] The Crown does not allege that the applicant had a motive to kill Mr. Smart. Motive is not an essential element that must be proven beyond a reasonable doubt on a charge of murder. Evidence of a motive to kill would be relevant to issues of intention and planning and deliberation.

[16] The applicant and Black Hoodie attended Cube nightclub sometime in the afternoon. They were denied entry to the club by security guards. Later the applicant and Black Hoodie are observed on Queen Street not far from the club entrance. Black Hoodie appears to make two phone calls. One of those calls is to an Uber driver. The Uber driver arrives and parks on the south side of Queen Street. Black Hoodie crosses the street. He enters the rear passenger door of the Uber and then exits. He crosses the street back towards the club.

[17] A third male exits the club and is greeted by the applicant and Black Hoodie. The three of them return to the Uber vehicle. Black Hoodie and the applicant remain together.

[18] There is extensive video evidence of the applicant and Black Hoodie acting in tandem before and after the shots were fired. The applicant and Black Hoodie arrive together in the area of Cube nightclub and are both in and out of an uber vehicle nearby. They were both armed with concealed loaded handguns. After the initial shots fired by Mr. Smart both the applicant and Black Hoodie are seen firing shots towards Mr. Smart’s back as he fled on foot west on Queen Street. After all the shots had been fired, the applicant and Black Hoodie fled the scene on foot eastbound on Queen Street and then north until they are no longer seen on video.

THE LAW

[19] In R. v. Mendes and Wilson, 2019 ONSC 4645 at paras. 8-16 inclusive, I reviewed the law applicable on motions for directed verdicts where the charge is first degree murder:

8. In determining whether there is sufficient evidence to go to a jury, a trial judge must apply the same test as is applied by a preliminary inquiry judge in determining committal for trial. That test, as articulated in United States v. Sheppard (1976), 1976 CanLII 8 (SCC), 30 C.C.C. (2d) 424 (S.C.C.), is whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.

9. The test for a directed verdict is the same whether the evidence is direct or circumstantial.

10. The Supreme Court of Canada in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, held that where the Crown’s case on an essential element of the offence relies wholly on circumstantial evidence the judge must engage in a ‘limited weighing’ of the evidence as a whole to determine whether, if the evidence is believed, it would be reasonable to infer guilt. The limited weighing is not a weighing of the reliability or credibility of the evidence, but an assessment of the reasonableness of the inferences to be drawn from the evidence.

11. Ducharme J., in R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 205 C.C.C. (3d) 70, (Sup.Ct.) explained the process of limited weighing as follows:

This limited weighing means that inferences to be drawn from circumstantial evidence need not be ‘compelling’ or even ‘easily drawn’ in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve .... If a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary hearing is required to draw it.

12. As pointed out by Hill J. in R. v. Coke, [1996] O.J. No. 808 (Gen. Div.), at paragraph 11: “It is not a legitimate exercise of judicial discretion for a preliminary inquiry justice to ignore the incriminatory probative value of an item or chain of related items of evidence simply because an equally permissible inference accords with an innocent interpretation.”

13. The process of drawing inferences from evidence is not the same as speculating even when the circumstances permit an educated guess. The trier of fact will assess evidence in the light of common sense and human experience, but neither are a substitute for evidence: R. v. Huynh, 2005 CanLII 34563 (ONCA), at para. 7.

14. The law with respect to planning and deliberation was summarized by Archibald J. in R. v. Newman, [2010] O.J. N. 4627 (S.C.J.) at paragraphs 31 to 34 as follows:

The meaning of the terms “planned and deliberate” is well established in the case law. The well recognized definition of these terms is provided by Gale J. in R. v. Widdifield (1963-64) 6 Crim. L.Q. 152 at 153-54:

I think that in the Code, “planned” is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

The important element, it seems to me, insofar as time is concerned, is the time involved in developing a plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.

As far as the word “deliberate” is concerned, I think the Code means that it should also carry its natural meaning of “considered,” “not impulsive,” “slow in deciding,” “cautious,” implying that the accused must take time to weigh the advantages and disadvantages of his intended action. That is, what it seems to me, deliberate means.

[32] The elements of planning and deliberation must precede the commencement of the conduct that causes death: R. v. Reynolds (1978), 1978 CanLII 1269 (ON CA), 44 C.C.C. (2d) 129 (Ont. C.A.); R. v. Smith (1979), 1979 CanLII 2233 (SK CA), 51 C.C.C. (2d) 381 (Sask. C.A.). Justice Watt, in R. v. Ayotte, [1998] O.J. No. 4700 at paras. 64-65(Ct. J. (Gen. Div.)), refers to the law on “planned and deliberate” as follows:

For there to be a planned and deliberate murder, there must be evidence that the murder was the result of a scheme or design that the accused had previously formulated or designed. The murder must be the implementation of that scheme or design. A murder committed on sudden impulse, without prior consideration, however intentional, is not a planned and deliberate murder…

It is also important to remember that in cases where there is no evidence of what took place between the accused and the deceased at times crucial to the issues of planning and deliberation, inferences about specific mental states are well nigh impossible to draw.

[33] There is no requirement that a plan take hours or days to prepare. Although the time it takes to develop a plan is an important factor in deciding if a murder is planned, there is no minimum time required. A very simple plan can be formulated in a very short period of time: R. v. Weese, 2010 ONSC 3589, [2010] O.J. No. 2651 at para. 17; R. v. Plewes, 2000 BCCA 278, [2000] B.C.J. No. 832 (C.A.).

[34] The elements of planning and deliberation, while both essential to first-degree murder, are also separate. Thus, there can only be an order to stand trial for first-degree murder if the threshold test is met for both planning and deliberation, independently: R. v. More, 1963 CanLII 79 (SCC), [1963] S.C.R. 522; R. v. Stevens (1984), 1984 CanLII 3481 (ON CA), 11 C.C.C. (3d) 518 at 538-39 (Ont. C.A.).

15. Planning and deliberation may be proven by circumstantial or direct evidence.

16. In a case where there is one shooter, the non-shooter’s potential liability must be as an aider or abettor, not as a co-principal: R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198 at para. 71.

PARTY LIABILITY- CO-PRINCIPALS

[20] Co-principal liability arises where two people “together form an intention to commit an offence, are present at the commission of the crime and contribute to it” even if they do not personally commit every essential element of the offence: Criminal Code s.21(1); R. v. Pickton, 2010 SCC 32 at para. 63; R. v. Suzack, 2000 CanLii 5630 (ONCA) at para. 152; R. v. Spackman, 2012 ONCA 905 at paras. 180-187.

TRANSFERRED INTENT

[21] Where a person has the specific intent to kill a particular person but kills another person by chance or mistake that person is guilty of murder: Criminal Code s. 229(b); R. v. Droste, 1 S.C.R. 208 at para. 19.

ANALYSIS

[22] There is significant evidence that the applicant and Black Hoodie meant to cause the death of Mr. Smart when they both fired shots at him as he fled. There is evidence that the applicant fired a shot at Mr. Smart as he lay on the pavement already wounded. All of this evidence of an intentional killing does not prove that the killing was both planned and deliberated. The Crown submits that the applicant and Black Hoodie planned and deliberated the killing in their interactions before shots were fired. With respect, that invited speculation as to what they discussed or planned to do. The opportunity to plan and deliberate does not, without more, amount to evidence fit for a jury to consider on this most serious charge.

[23] The video evidence shows that the applicant and Mr. Smart may have had some kind of a verbal altercation before shots were fired. There is no evidence of what that was about and no evidence of any prior connection between them. This evidence, alone or in conjunction with any other evidence, is not evidence of planning and deliberation to commit murder.

[24] The Crown did not allege and did not need to prove that the applicant or his co-perpetrator intended to fire any shots at Mr. Modekwe or Ms. Weir. There was a reasonable evidential basis that these two persons were the unintended recipients of shots fired by the applicant and Black Hoodie towards Mr. Smart. On that basis the applicant properly faces legal jeopardy for the second degree murder of Mr. Modekwe and the wounding of Ms. Weir.

[25] The applicant does not dispute that there is an evidential and legal basis for the jury to consider the charge of second degree murder related to Mr. Smart. That has significant implications for the charges related to Mr. Modekwe and Ms. Weir if the applicant and Black Hoodie were acting with the common intention of killing Mr. Smart and they both fired shots at him. The Crown does not have to prove who fired the fatal shot or shots. Likewise, if they were co-perpetrators of the intentional killing of Mr. Smart then the Crown does not have to prove which of them fired the shots that struck Mr. Modekwe and Ms. Weir. Based on the legal concept of transferred intent, the applicant may properly be found guilty of the second degree murder of Mr. Modekwe and the injuries to Ms. Weir.

RESULT

[26] In regard to count 1, the application is allowed and the jury will deal with the alleged second degree murder of Mr. Smart.

[27] In regard to count 2, the application is allowed on the charge of first degree murder but the jury will deal with the alleged second degree murder of Mr. Modekwe.

[28] The application on counts 3 and 4 in regard to the injuries to Ms. Weir are dismissed.

O’Marra J.

B.P. O’MARRA J.

Released: August 31, 2022

COURT FILE NO.: CR-21-10000104-0000

DATE: 20220831

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ABDULKADIR HANDULE

Applicant

RULING ON APPLICATIONS FOR DIRECTED VERDICTS

B.P. O’MARRA J.

Released: August 31, 2022