COURT FILE NO.: CR-21-50000156-00MO
DATE: 20230111
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
FAZAL ZABAN
Paul Zambonini and Corina McNeil, for the Crown
Paul Alexander, for the Defence
HEARD: December 2, 2022
R.F. GOLDSTEIN J.
[1] On August 19, 2019 Minh Dung Le was shot to death in his car in a parking lot. At a preliminary inquiry, Justice Ishak of the Ontario Court of Justice committed the applicant, Fazal Zaban, for trial on a charge of first degree murder. The basis of the committal was that an unidentified man prevented Mr. Le from getting out of the car while Mr. Zaban shot him. The preliminary inquiry judge found that there was some evidence upon which a jury could find that the unidentified individual forcibly confined Mr. Le and that Mr. Zaban was a party to the forcible confinement.
[2] Mr. Zaban applies to quash the committal on first degree murder and substitute a charge of second degree murder. Mr. Alexander, Mr. Zaban’s counsel, concedes that there was a basis for the preliminary inquiry judge to find that there was some evidence upon which a jury could find that Mr. Zaban shot Mr. Le. He also concedes that there was a basis for the preliminary inquiry judge to find that there was some evidence upon which a jury could find that Mr. Zaban had the requisite mental intention for murder. He argues, however, that there was no evidence that Mr. Zaban was forcibly confined at the time of the shooting; and if there was such evidence, there was no evidence that Mr. Zaban was party to the forcible confinement. Since there was no such evidence, the preliminary inquiry judge made an error of jurisdiction by committing Mr. Zaban on a charge first degree murder.
[3] I respectfully disagree. The preliminary inquiry judge made no jurisdictional error. There was some evidence upon which the preliminary inquiry judge could find that a jury could convict Mr. Zaban of first degree murder.
[4] The test for committal for trial is obviously well settled: is there some evidence upon which a reasonable jury, properly instructed, could convict? The Crown must adduce at least some evidence upon each element of the offence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. The only basis upon which this Court can intervene in a preliminary inquiry judge’s decision is where the judge has made a jurisdictional error: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 at para. 16. Committing an accused person to stand trial where there is no evidence upon an essential element of the offence would constitute a jurisdictional error.
[5] The preliminary inquiry judge was required to find that there was some evidence on each of the essential elements of murder. Those elements were:
• That Mr. Zaban committed an unlawful act;
• That the unlawful act caused Mr. Le’s death; and,
• That Mr. Zaban intended to cause Mr. Le’s death, or that he intended to cause bodily harm to Mr. Le that he knew was likely to cause death and was reckless as to whether death ensued or not.
[6] See: Criminal Code, s. 239.
[7] First degree murder is an aggravated form of murder. Murder is first degree murder when it is committed during commission of certain other listed offences. Forcible confinement is one of those offences: Criminal Code, s. 231(5)(e). The murder and the forcible confinement must be part of a single criminal transaction.
[8] Defence counsel attempted to argue at the preliminary inquiry that there was no evidence upon which a jury could convict Mr. Zaban of second degree murder. The preliminary inquiry judge easily and correctly rejected that argument. There was clearly some evidence upon each of the essential elements for second degree murder. There was evidence of the following:
• There was some kind of argument between Mr. Zaban and Mr. Le while they were in Mr. Le’s car;
• Mr. Zaban was in the car when Mr. Le was shot;
• The police found a hat in Mr. Le’s car. The hat had Mr. Zaban’s DNA on it;
• Video from a truck dashcam showed Mr. Zaban walking away from the scene right after the shooting. Mr. Zaban was carrying a small Gucci bag;
• The police later recovered a small Gucci bag near the scene resembling the Gucci bag carried by Mr. Zaban. The bag contained a firearm. The police submitted the bag and the firearm for forensic testing. Tests showed that the firearm was used to shoot Mr. Le;
• Forensic biologists found Mr. Le’s DNA on the firearm and on the Gucci bag; and,
• Forensic biologists also found Mr. Zaban’s DNA on the firearm and on the Gucci bag.
[9] The real question was whether there was some evidence upon which a jury could find that Mr. Le was forcibly confined and that Mr. Zaban was a party to that forcible confinement.
[10] Huong Tran was Mr. Le’s daughter-in-law. She was an eyewitness. She testified that she saw Mr. Le in a plaza, outside his car, talking to two men. One of the men was large, and the other was small. Defence counsel conceded that there was evidence that Mr. Zaban was the small man. The large man was not identified. They spoke outside Mr. Le’s car for about 15 or 20 minutes. Ms. Tran testified that Mr. Le then got into the driver’s seat of his car. Mr. Zaban got into the passenger seat. The large unidentified man stood outside the driver’s door. Mr. Le tried to open the door a few times. The large unidentified man prevented him from doing so. She saw what appeared to be an argument between the men inside the car. She did hear several gunshots. The large man walked away, and Mr. Le’s car moved through the parking lot. Ms. Tran did not see Mr. Zaban shoot Mr. Le but she did see the two men in the car together making gestures. She eventually saw Mr. Le on the pavement outside his car, bleeding. She did not see where Mr. Zaban went. She saw the large unidentified man “scatter”. She stated that the large unidentified man was still outside the driver’s door when she heard the second “pop”.
[11] Daniel Tesan was drinking a Tim Horton’s iced cappuccino in the parking lot when he saw the incident. He testified that he saw four men talking outside a car. Two got into the car. One man was standing outside the driver’s door when he heard what sounded like a shot. The fourth man, who had been near the car, left. The third man, the one outside the driver’s door, was still standing there when Mr. Tesan heard a second shot. He did not see Mr. Le try to open the door or the man outside the door try to keep him in the car. He testified that he saw Mr. Le’s car move forward. He heard more gunshots. Eventually Mr. Le’s car stopped and Mr. Le got out of the car, staggered, collapsed, crawled, and then stopped moving. He did not see where the man alleged to be Mr. Zaban went.
[12] Mr. Alexander argues that the preliminary inquiry judge made three errors: first, the large, unidentified man mentioned by Ms. Tran had walked away by the time of the shooting. He could not, therefore, have confined Mr. Le when Mr. Zaban shot him. Second, Mr. Alexander argues that if there was a confinement, it was not temporarily connected to the shooting. It was not, therefore, part of a single transaction. Third, Mr. Alexander argues that there was no evidence that Mr. Zaban was party to the unlawful confinement, if there was an unlawful confinement.
[13] Respectfully, I disagree with all three points.
[14] The evidence of Ms. Tran and Mr. Tesan is sufficient to reject the first point. Although Mr. Tesan did not see the large unidentified man keep Mr. Le in the car, Ms. Tran did. Mr. Tesan did see the large unidentified man by the driver’s side door when he heard gunshots. The preliminary inquiry judge noted that in order to establish forcible confinement the victim must be coercively restrained for a significant period of time: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195 at para. 29. He then stated:
Mr. Le opened his door and attempted to exit his vehicle three times but was prevented from doing so by the chubby man who used his belly to forcefully and repeatedly push the door shut. Each push was a few seconds apart. As a result of the chubby man’s actions, Mr. Le was forcibly confined.
[15] In my respectful view, there was an ample basis upon which the preliminary inquiry judge could have made this finding.
[16] Dealing with Mr. Alexander’s second point, the preliminary inquiry judge was also justified in finding that the forcible confinement and the shooting were part of a single transaction. In R. v. Pare, 1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618 Wilson J. stated:
In my view, such an interpretation has been provided by Martin J.A. in Stevens, supra. As noted above, Martin J.A. suggested that "where the act causing death and the acts constituting the rape, attempted rape, indecent assault or an attempt to commit indecent assault, as the case may be, all form part of one continuous sequence of events forming a single transaction" the death was caused "while committing" an offence for the purposes of s. 214(5). This interpretation eliminates the need to draw artificial lines to separate the commission and the aftermath of an indecent assault. Further, it eliminates the arbitrariness inherent in the exactly simultaneous approach. I would, therefore, respectfully adopt Martin J.A.'s single transaction analysis as the proper construction of s. 214(5).
[17] The evidence strongly suggested that there was an ongoing transaction of some kind between Mr. Le, Mr. Zaban, and the unidentified large male who, on Ms. Tran’s evidence, prevented Mr. Le from leaving the car. The men were in conversation for at least 15 minutes. When Mr. Zaban and Mr. Le were in the car they appeared to be discussing something. When Mr. Le attempted to leave, the large unidentified man prevented him from doing so. While a jury might have a reasonable doubt, based on Mr. Tesan’s evidence, that the large man did not prevent Mr. Le from leaving at the time of the shooting, it might also find, based on Ms. Trans’ evidence, that he did. The preliminary inquiry judge was required to draw reasonable inferences that supported the Crown theory, not discount them: R. v. Jackson, 2016 ONCA 736, [2016] O.J. No. 6777 (C.A.). As well, a jury could find that the large unidentified man remained outside the driver’s side door when Mr. Le was shot. In my view, an unsuccessful escape attempt by Mr. Le at that point was not required for there to be a forcible confinement. The man simply remaining there after preventing an earlier escape was a sufficient basis for a jury to find that him remaining there was part of a single transaction.
[18] I turn to Mr. Mr. Alexander’s third point. If there was a forcible confinement, was Mr. Zaban party to it? The preliminary inquiry judge stated:
When I consider the sequence of events, as well as the cumulative actions of the chubby man and Mr. Zaban, I find it would be reasonable for a jury to infer they were working in concert, and that Mr. Zaban was either a co-principal to the forcible confinement, or aided in its enforcement.
[19] Again, there was a basis for the preliminary inquiry judge to make this finding. There was evidence, based on Ms. Tran’s testimony, that Mr. Le appeared to have been waiting to meet the other men in the parking lot. He sat there waiting, alone in his car. Later, Ms. Tran observed Mr. Le chatting with the men for 15 or 20 minutes. The large unidentified man appeared to deliberately prevent Mr. Le from leaving the car while he was in the car with an armed Mr. Zaban – and it was open to the jury to find that Mr. Zaban brought the gun to the encounter. Critically, there was evidence that after the first shot, the large unidentified man did not leave. He did not scatter. He remained outside the driver’s side door. That would be an important piece of evidence for a jury to consider when deciding if Mr. Zaban was party fo the forcible confinement. In my view, the preliminary inquiry judge’s finding that it would be open to a jury to infer that the large unidentified man was working with Mr. Zaban was supported by the evidence.
[20] The application is dismissed.
R.F. Goldstein J.
Released: January 11, 2023
COURT FILE NO.: CR-21-50000156-00MO
DATE: 20230111
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
FAZAL ZABAN
REASONS FOR JUDGMENT ON CERTIORARI APPLICATION
R.F. Goldstein J.