Court File and Parties
Court File No.: CR-19-10000600-0000 Date: 2023-03-10 Superior Court of Justice - Ontario
Re: R. v. Andrew Aaeon Douglas
Before: Justice N. J. Spies
Counsel: Karen Simone and Tara Cassidy, for the Crown Richard Posner and Zaid Shams, for Mr. Douglas
Heard: October 16, 2022
Ruling on Application for Directed Verdict on First Degree Murder Charge
Spies J.
Overview
[1] Andrew Douglas was charged with first degree murder of Michael Lewis, who died on September 2, 2018, after being shot six times, contrary to s. 235(1) of the Criminal Code. His trial began before me with a jury on September 26, 2022. At the end of the Crown’s case, I heard submissions on an application brought on behalf of Mr. Douglas for a directed verdict of acquittal on the charge of first degree murder. The applicant accepted that there was sufficient evidence to go to the jury on the included offence of second degree murder. The application was opposed by counsel for the Crown. On October 18, 2022, I advised counsel and Mr. Douglas that I had decided that the application should be dismissed and that I would provide written reasons for my decision. These are my reasons.
The Test
[2] In reaching my decision I adopted the following test which comes from R. v. Charemski where Justice McLachlin, (as she then was), writing for herself and Major J., and dissenting on other grounds, stated:
[20] A properly instructed jury acting reasonably is a jury that will convict only if it finds that the evidence establishes guilt beyond a reasonable doubt. To determine whether this could occur, the judge on the motion for a directed verdict must ask whether some or all of the admissible evidence is legally sufficient to permit the jury to find guilt beyond a reasonable doubt. In doing so, the trial judge is determining the sufficiency of the evidence. The question is whether the evidence is capable of supporting a verdict of guilt beyond a reasonable doubt. …
[22] … Where the case is based on circumstantial evidence…[i]n order to determine whether a properly instructed jury could reasonably convict, the judge must determine whether, assuming the circumstantial facts are proved, it would be reasonable to make the inference necessary to establish the facts in issue.
[23] On any motion for a directed verdict, whether the evidence is direct or circumstantial, the judge, in assessing the sufficiency of the evidence must, by definition, weigh it. …But weighing the evidence for this purpose is a very limited exercise. …the judge assesses whether, hypothetically, a guilty verdict is possible; the jury determines whether guilt has actually been proved beyond a reasonable doubt. [Emphasis added]
[3] In R. v. Arcuri, McLachlin C.J. wrote for a unanimous Court. It is significant that she stated that Charemski did not evidence disagreement in the Court as to the proper approach. She went on to clarify the approach regarding the weighing of evidence, making it clear that where the Crown’s case involves circumstantial evidence, the judge must engage in a “limited weighing” of the evidence. As McLachlin C.J. held at para. 23:
… Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established…. The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Emphasis mine]
[4] I also considered R. v. Turner, where the Court of Appeal reviewed these decisions including para. 35 of Charemski where McLachlin J. stated:
… “sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.
The Evidence
[5] The Crown’s theory of planning and deliberation relied on evidence related to motive and animus, and the conduct of Mr. Douglas just before the death of Mr. Lewis after he was shot six times on September 2, 2018, in Coronation Park. The Crown relied on video surveillance evidence, the evidence of Mr. Lewis’ girlfriend, Emily Chamberlain and a number of admissions that included the following:
a) Mr. Douglas grew up in the downtown Toronto area of Regent Park where he lived with his mother and siblings, including Jahlique Bent and Jahvante Smart. Mr. Smart was a younger brother of Mr. Douglas, and they had a close relationship with one another.
b) Mr. Smart was an up-and-coming rapper, and his stage name was “Smoke Dawg”.
c) In 2016, Mr. Lewis purchased a distinctive gold pendant, shaped like a shield, with a chain, valued at approximately $2,000 from Ama Jewellery. It had the number 416 on it and was referred to as the 416 chain. The admissions included a photograph taken in 2016 of Mr. wearing the 416 chain.
d) In February 2016, the 416 chain was taken from Mr. Lewis’ apartment without his consent. A police report was made.
e) On July 2, 2016, a photo of Mr. Smart was posted on his Instagram account. In this photograph, he was wearing what appears to be the same 416 chain that belonged to Mr. Lewis. I add for the purpose of this application, that it was a reasonable inference that what Mr. Smart was wearing was the 416 chain.
f) It was agreed that Mr. Smart was in no way responsible for the theft of the 416 chain.
g) The police investigation indicated that from the first post on July 2, 2016, until March 26, 2017, a period of almost nine months, 26 photographs and one music video of Mr. Smart wearing the 416 chain were posted on his Instagram account.
h) On March 26, 2017, a photograph of Mr. Smart wearing the 416 chain was posted to his Instagram account. There are no subsequent photographs of Mr. Smart wearing the 416 chain posted to his social media after this date.
i) Given the size and shape and obvious value of the 416 chain and the frequency with which Mr. Smart posted photographs and videos of him wearing it on social media, a reasonable inference is that it was an important piece of jewelry to him. In fact, in the photograph of March 26, 2017, Mr. Smart was wearing the chain outside of a zipped-up track jacket so that it was still visible.
j) Mr. Lewis took back the 416 chain from Mr. Smart on March 27, 2017. I will come back to the evidence of Ms. Chamberlain as to what Mr. Lewis told her about how this happened.
k) Ms. Chamberlain took a photograph of Mr. Lewis wearing the necklace on March 27th, 2017, although there is no evidence that photograph was posted to social media.
l) Ms. Chamberlain testified that Mr. Lewis told her after the took back the 416 chain that he considered it “bad” and that he told her two different things about what he did with it; give it to Ama Jewellery or to a rapper. He received money for the 416 chain according to Ms. Chamberlain.
m) On March 28, 2017, a nine second video was posted to Filmon Adnekom’s Instagram account which depicted him wearing the 416 chain. He is a rapper whose stage name is “Vanauley Stacks" (“Stacks”).
n) The police investigation indicated that from March 28, 2017, up until May 21, 2017, four photographs, one video clip and one rap video of Filmon Adnekom were posted to his Instagram. In these posts, Filmon Adnekom is wearing a similar necklace to the one that belonged to Mr. Lewis.
o) On June 30th, 2018, Mr. Smart was killed. Mr. Lewis was not responsible for Jahvante Smart’s death, directly or indirectly.
p) At no time did Mr. Douglas believe or suspect that Mr. Lewis had any connection with, or responsibility for, Mr. Smart’s death.
q) When the police searched the Porsche Cayenne that Mr. Douglas was driving at the time of his arrest, they discovered numerous personal possessions of Mr. Douglas, including a “Smoke Dawg” tag memorial necklace.
[6] Ms. Chamberlain testified that when she took the photograph of Mr. Lewis wearing the 416 chain, he had just gotten the necklace back. She testified about what Mr. Lewis told her about getting his chain back. There was no issue about the admissibility of this evidence as ante mortem statements and the jury was instructed accordingly. According to Ms. Chamberlain, Mr. Lewis had gone to a dispensary to buy some weed and he told her that he saw Smoke Dawg and some of his friends walk in. He saw that Smoke Dawg was wearing his 416 chain and he grabbed the chain off his neck and ran and took a taxi home. Ms. Chamberlain did not know whether this occurred as Mr. Lewis was coming or leaving the dispensary, but she assumed it happened as he was leaving. She was not asked why she assumed this, but that assumption makes sense as Mr. Lewis did come home with some weed. In cross-examination Ms. Chamberlain testified that she did not know exactly what happened when Mr. Lewis took the chain or how he grabbed it. At the time Ms. Chamberlain did not know who Smoke Dawg was. Mr. Lewis never told her who else was with Smoke Dawg when he took his chain back. He did tell her that he was glad that she was not there when he went to the weed store as she would have slowed him down.
[7] A reasonable inference from this evidence is that Mr. Lewis was within reaching distance as he was able to grab the chain. It is also reasonable to infer that he grabbed the chain quickly as there is no evidence that Smoke Dawg or his friends went after him. This event occurred before Covid so it is also reasonable to assume Mr. Lewis would not have been wearing a mask. Although there is no evidence that Mr. Lewis was recognized as the person who grabbed the chain, there is a reasonable inference that since Mr. Lewis grew up in the Regent Park neighborhood that Smoke Dawg or someone he was with recognized who took the 416 chain from his neck and that it was Mr. Lewis.
[8] When Mr. Lewis got home, Ms. Chamberlain testified that he was happy that he had taken his chain back. Mr. Lewis always told her he wanted his 416 chain back because of his pride. However, he felt it was "bad" after this event. Mr. Lewis told her two different things about what he did with the chain. First, he told her that he had given it to a jeweler and then he told her that he had given it to a rapper – she could not recall the name at first but did remember that he got some money for the 416 chain. After Ms. Chamberlain’s memory was refreshed, she testified that Mr. Lewis was a friend of the rapper Vanauley Stacks (“Stacks”), that their friendship was not out in the open and that it was very secretive because of the different areas they were from. She didn't remember where this rapper was from, but Mr. Lewis was from Regent Park.
[9] When asked if Mr. Lewis told her about any concerns after he took the 416 chain back from Smoke Dawg, Ms. Chamberlain testified that he told her that it was dangerous, and that people probably wanted to kill him. He didn't want to go certain places like downtown to where these people would likely be. Mr. Lewis often expressed concern about this. As a result, they didn't go downtown very much. Later in her evidence she testified that she thought Mr. Lewis was extra paranoid about the events at the dispensary. However, she also admitted that Mr. Lewis probably had had this paranoia from the time she met him. She also admitted that Mr. Lewis took precautions and did not like to be in Regent Park either.
[10] Ms. Chamberlain testified that Mr. Lewis was worried and really concerned if it became public that he had given the 416 chain to Stacks. She did not know who he was afraid of and had never heard the name Andrew as being a threat to Mr. Lewis. He never mentioned anyone specifically who was a threat, just anyone from Regent Park.
[11] The theory of Crown as a result of this evidence concerning the 416 chain was that Mr. Douglas would be angry with Mr. Lewis because Mr. Lewis took back the 416 chain from the neck of Smoke Dawg in a very public way in the presence of other people, as he exited a cannabis dispensary. The Crown also relied on the fact that this chain was then given away by Mr. Lewis the next day and ended up on the neck of Stacks who was a rival rapper, from the Alexander Park neighbourhood who then used it to taunt Smoke Dawg on social media. Smoke Dawg then died giving Mr. Douglas a reason to seek revenge to protect the reputation of his deceased brother.
[12] The other evidence that was important to this application is as follows:
a) Video surveillance footage was obtained by the Toronto Police Service (“TPS”) from several cameras near the scene of the shooting and from the parking garage located at 20 Bruyeres Mews, Toronto.
b) The video surveillance in the parking garage captured three vehicles entering one after the other on September 2, 2018, at about 6:01 pm, defined in the admissions as the Jaguar, that TPS identified was being driven Yassin Ali, the Honda being driven by Mohamed Camara and a silver Infiniti Q5S that was driven by Mr. Douglas. The Infiniti was registered to Mr. Douglas’ girlfriend.
c) Mr. Douglas was wearing what appeared to be a matching grey track suit with a white t-shirt. When he exited the vehicle, he was carrying the hoodie for the track suit, and he had a black satchel. The theory of the Crown was that Mr. Douglas brought a small, loaded firearm to the BBQ with a plan to use it, that was concealed in the pocket of his track pants.
d) Mr. Douglas’ younger brother Jahlique was a passenger in the Infiniti.
e) The surveillance video evidence shows Mr. Douglas putting up the hood of his sweatshirt as he went into the park. The Crown argued that the inference that could reasonably be drawn is that he did so in an attempt to hide his face as it was a 30 Celsius plus day. If it was a style decision, the evidence was that no one else in the surveillance video evidence either on the street or at the BBQ can be seen with the hood of their tracksuit up. Although it was not a disguise, the hood did cover much of Mr. Douglas’ head.
f) The evidence was that this was the ninth annual memorial BBQ hosted by Cherylann Singh every year as a celebration of life for her son who died in 2009. Ms. Singh testified that the people who were invited to the BBQ were her friends and friends of her son's. She said that the "usual group" of her son's friends helped her and this included Mr. Lewis. She did not know someone named Andrew Douglas. This supported a reasonable inference that Mr. Douglas had not been invited to the BBQ and was not someone who regularly attended the BBQ.
g) Ms. Singh testified that Mr. Lewis was already at the BBQ when she arrived and that he was there with Ms. Chamberlain and his two children. Ms. Singh confirmed the evidence of Ms. Chamberlain that Mr. Lewis had brought supplies for the BBQ from Costco.
h) The fact this was a Memorial BBQ that occurred every year and concerned someone killed in Regent Park supported a reasonable inference that Mr. Douglas would have reason to believe that Mr. Lewis would be at the BBQ given that Mr. Lewis had helped with the event for the prior nine years.
i) The Crown relied on the fact that from the time Mr. Douglas entered the park to the time he ran out was less than six minutes, which the Crown argued supported an inference that Mr. Douglas went into the park to complete his plan to murder Mr. Douglas.
j) The Crown also relied on the fact that there were six penetrating gunshot wounds to Mr. Lewis’ head and six cartridge casings to support the inference that Mr. Douglas shot precisely and that the murder was done in an execution style consistent with the alleged motive to kill Mr. Lewis.
[13] Ms. Chamberlain also gave evidence about what happened at the BBQ. She testified that Mr. Lewis was sitting at the end of one of the two picnic tables by the BBQ. She identified a black lawn chair that she was sitting in. According to Ms. Chamberlain, a man in a Nike track suit with a matching grey hoody and pants, with a black stripe going down the pants, walked up to Shermz who was wearing a white t-shirt and light grey adidas pants. It was reasonable to infer from the video surveillance evidence that this man was Mr. Douglas. Ms. Chamberlain had not seen this man arrive at the BBQ. She saw that there were two or three other men with this man. The man said “what’s up” to Shermz and they shook hands. It looked to Ms. Chamberlain as though they were friends. Shermz then looked at Mr. Lewis and he said to Mr. Lewis: “Andrew is here”.
[14] Ms. Chamberlain testified that when Shermz mentioned the name Andrew, Mr. Lewis looked at her and she “thought he knew that something bad was going to happen” and that he looked scared. According to Ms. Chamberlain she had never seen Mr. Lewis look that way before – she had never seen that expression on his face before. The Crown argued that this was fear and supported the evidence of Ms. Chamberlain that because of the 416 chain Mr. Lewis was fearful of Smoke Dawg, and presumably his brother, Mr. Douglas, because he had grabbed the chain back and humiliated Smoke Dawg.
[15] According to Ms. Chamberlain, the man who Shermz referred to as Andrew then said to Mr. Lewis: “let me hollo at you quick”, which I understand means he wanted to talk to Mr. Lewis. Mr. Lewis then got up and went with this man, walking in a way Ms. Chamberlain said was “awkward”. According to Ms. Chamberlain they talked for about two minutes. The only thing she heard before hearing the gunshots was Mr. Lewis saying, "Look at how you are coming at me". She admitted that perhaps this was not exactly what Mr. Lewis said but it was the gist of it.
[16] Ms. Chamberlain testified that initially her back was to Mr. Lewis and the other man. In her evidence in chief, Ms. Chamberlain testified that she wasn't trying to be "extra", meaning draw attention, but she said that she did not know why she did not turn around when Mr. Lewis walked away with this man. When she heard multiple shots she stood up and turned around. In cross-examination, Ms. Chamberlain denied that she watched the entire interaction between Mr. Lewis and Mr. Douglas but did not want to tell the jury what she saw, implying that it was Mr. Lewis who had the gun. It was not specifically put to Ms. Chamberlain however that she saw Mr. Lewis with a gun that day. In fact, Ms. Chamberlain testified that Mr. Lewis did not have a gun in his possession on the day of the BBQ.
[17] Ms. Chamberlain did not see the start of the altercation between Mr. Lewis and Mr. Douglas, as her back was to them. None of the Crown witnesses saw the start of the altercation and so no one was able to say whether Mr. Douglas or Mr. Lewis was initially in possession of the one gun. The evidence was that one gun was used by Mr. Douglas to fire all six shots that hit Mr. Lewis and no shell casing were found by police of any other firearm being used.
[18] When Ms. Chamberlain stood up and turned around, she testified that she saw Mr. Lewis on the ground on his back and the shooter standing over top of him "right at his face". She testified that she was a few metres away from Mr. Lewis. She saw a gun in the man’s right hand as he stood over Mr. Lewis, but she did not recall where the gun came from in the first place. She heard Mr. Lewis say “no” and Ms. Chamberlain then she saw Mr. Lewis cover his face with both hands. The man with the gun then shot him in the head. Ms. Chamberlain testified later that after she turned around, although she did not actually see the bullets entering Mr. Lewis’ head, she heard the last shots and saw the shooter run away. She was shocked.
[19] There was no one else in the immediate area to Mr. Lewis and the shooter. Ms. Chamberlain did not recall the number of shots. She testified that she blacked out at that point as she saw Mr. Lewis on the ground.
[20] Ms. Chamberlain testified that from the time she first saw the shooter to the shooter running away was a matter of eight to less than ten minutes. There was nothing obstructing her view of the shooter. She made eye contact with the shooter after he shot Mr. Lewis in the head. He looked at her with a blank expression "I guess". The shooter never said anything to her. All she said to the shooter was, "No".
Analysis
[21] My decision to dismiss the application was a close call. The Crown’s case on the charge of first degree murder was entirely circumstantial. There was no direct evidence of a plan. That in itself was not of concern as, in most cases, evidence of both planning and deliberation will be circumstantial rather than direct; see R v. Robinson, 2017 ONCA 645 at para. 36. At para. 34 of Robinson, Doherty J.A. set out the requirements for a murder to be planned and deliberate which I considered in deciding the application.
[22] Accordingly, I focused on whether, considering this body of evidence cumulatively, there was a reasonable inference that Mr. Douglas acted in accordance with a plan or design which had been thought out and deliberated on in advance of his attendance at the memorial BBQ. For this purpose, I also took the Crown’s evidence at its highest and considered the inferences most favourable to the Crown.
[23] The Crown’s theory that Mr. Douglas was motivated to kill Mr. Lewis for revenge because of the 416 chain was weak but I accepted that a jury could find it gave Mr. Douglas a reason to plan a murder of Mr. Lewis. Certainly, with the prevalence of handguns in the city it seems that people have been killed for something of this nature or even less. In any event motive is not an essential element that must be proven beyond a reasonable doubt on a charge of first degree murder although it can help establish intent as well as planning and deliberation; see R v Singh, 2022 ONSC 3631 at para. 101.
[24] As for the planning, I did not accept the Crown’s submission that the fact Mr. Douglas parked where he did was part of the plan because it was farther away from the park than needed as there was no evidence there was a place to park that was closer.
[25] I accepted that a properly instructed jury could infer that Mr. Douglas attended the BBQ with a loaded gun. There was no evidence that Mr. Lewis had a firearm in his possession and the evidence was that it was Mr. Douglas who had shot Mr. Lewis repeatedly. He was wearing baggy clothing and carrying a satchel and so he could have concealed a gun in his possession.
[26] I found it was open to a jury to place some weight on the fact Mr. Douglas put his hood up just before he entered the park to hide his face. The jury could also infer that Mr. Douglas had not likely been invited to the BBQ and in any event was not a regular at the BBQ since he was not known to Ms. Singh. This left open a possible inference that Mr. Douglas went to the BBQ because he believed that Mr. Lewis would be there. This inference was supported by the fact that after Mr. Douglas entered the park, he must have gone directly to Shermz and Mr. Lewis given overall timing. There was no evidence he was socializing with anyone else at the BBQ. The fact that there were no introductions suggested that Mr. Lewis and Mr. Douglas knew each other.
[27] In addition, based on the evidence of Ms. Chamberlain, the fact Mr. Douglas told Mr. Lewis that he wanted to speak to him, and Mr. Lewis followed him a little away from where Ms. Chamberlain said she was, suggested that he wanted to talk to Mr. Lewis about something but that he did not want to talk about it in front of Ms. Chamberlain or near the others. That could have been about what happened with the 416 Chain and added some weight to the Crown’s theory about motive. It was also evidence of planning and deliberation in support of the Crown’s theory as to why Mr. Douglas went to the BBQ in that it did not suggest an impulsive act.
[28] I also found that because Mr. Douglas shot Mr. Lewis six times in the head, the jury could conclude on this evidence, particularly with respect to the last two of those shots, that Mr. Lewis was effectively executed, and this could support an inference that the murder was planned and deliberate; R. v. Hassan, 2018 ONSC 1214 at para. 14.
[29] For these reasons, considering the question of whether or not the whole of the evidence was capable of supporting a verdict of guilt beyond a reasonable doubt on the charge of first degree murder, I was not persuaded that a verdict of guilt could not reasonably be made. That is not to say that other inferences inconsistent with guilt could not reasonably be drawn. That however was not to be done at this stage as that was the job of the jury.
[30] Because of the concerns raised by Mr. Posner, which are described in R v Hafizi, 2019 ONSC 200 at para. 28, I was careful in my Charge to the jury to ensure the jury understood the distinction between the mental state for murder and deliberation in support of a first degree murder charge.
Disposition
[31] For these reasons, the motion for a directed verdict brought on behalf of Mr. Douglas was dismissed.
