F. DAWSON J.

[1] Mahmoud Al-Ramahi is charged with first degree murder in relation to the death of Abdifatah Salah. Mr. Salah was shot in the head on August 3, 2020. He died in hospital on August 5, 2020. Mr. Salah was shot just outside the Mississauga townhouse where he resided with other family members.

[2] Prior to, at the time of, and after the alleged murder the accused was a target in a large-scale police investigation into other matters. That investigation included the authorized interception of private communications. Those intercepts captured communications related to the alleged murder of Mr. Salah, leading to the charge before the court.

[3] The trial proceeded before me as a judge alone trial pursuant to the re-election of the accused with the consent of Crown counsel and the Attorney General of Ontario.

Overview

[4] The accused was the principal in charge of operating an illegal cannabis delivery service called “Sickspensary”. Wiretap evidence introduced at trial reveals that Sickspensary was a large operation with several employees. The intercepted communications show that the accused was proud of the expanding business which he described as “my company”.

[5] On July 29, 2020 a Sickspensary delivery driver was robbed of prepackaged marijuana described in the intercepted communications as valued at $5,000. In the transcripts of the intercepted communications the robber is referred to as “Saleh”, the spelling having been chosen by the transcriptionist.

[6] It is Crown counsel’s position that Abdifatah Salah was shot by an unknown assailant or assailants pursuant to a contract or arrangement for payment fostered by Mr. Al-Ramahi in retribution for the robbery of his delivery driver. It is Crown counsel’s position that the murder is first degree murder pursuant to s. 231(2) of the Criminal Code because it was planned and deliberate. Crown counsel submits it is also first degree murder because it was an arranged murder within the meaning of s. 231(3) of the Criminal Code. Section 231(3) provides that an arranged murder is deemed to be a planned and deliberate murder.

[7] Proof of the Crown’s case rests almost entirely upon seven intercepted communications, referred to by counsel as the “homicide intercepts” (Exhibit 6), set against the background of the timeline related to the robbery of the delivery driver, the shooting of the victim on August 3, 2020 and the death of the victim on August 5, 2020.

[8] A separate set of intercepted communications, referred to as the “Sickspensary intercepts” (Exhibit 7), was admitted for the limited purpose of showing that the accused took pride in and was very serious about the operation of Sickspensary and that he had employees whom he controlled. The Sickspensary intercepts were admitted for the limited purpose of demonstrating motive, animus, means and as narrative to provide context for the other evidence, as detailed in my ruling titled “Discreditable Conduct Evidence,” which can be found at 2024 ONSC 314.

[9] Mr. Al-Ramahi did not testify or call any evidence. Defence counsel relies upon significant gaps in the evidence and submits that against the background of those gaps the intercepts are inconclusive and do not prove beyond a reasonable doubt that the accused was a party to a murder. Counsel submits that is particularly so because we do not have sufficient evidence to understand what led to or set off the shooting at the crime scene on the night of August 3, 2020.

[10] While the deceased was shot once, multiple shots were fired at the scene. The deceased’s family members were uncooperative and no witnesses to the shooting were called. Security video from a distant location recorded the sound of 12 gunshots. Only eight shell casings were located by the police. A search of the deceased’s home located a handgun of a different calibre than the shell casings found on the street and a quantity of ammunition. Defence counsel submits that it is reasonably possible that the deceased or his brothers shot first and that a shootout followed. Defence counsel submits that such reasonable inferences disrupt proof of the Crown’s case because they constitute an intervening cause which undermines proof of the requirement for legal as well as factual causation.

[11] There is considerably more detail to consider both in relation to the evidence and the lack of evidence. Both Crown and defence counsel referred to the principles related to proof of a case primarily dependant on circumstantial evidence, as outlined in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[12] It is common ground that the accused was not at the scene of the shooting and there is no evidence that he provided any firearm, ammunition, or other assistance to those who participated in the shooting. The Crown’s case is based on the theory that the accused was a party to the unlawful shooting that caused death on the basis that he was an abettor under s. 21(1)(c) of the Criminal Code or pursuant to s. 22 of the Criminal Code because he counselled the commission of a murder by inciting or procuring the arrangement.

The Evidence in More Detail

[13] I will work my way through the evidence in the chronological order of the events. As I do so I will highlight controversial areas and relate the evidence, or the lack of evidence, to the positions of the parties. I will also resolve some factual matters while leaving others to be resolved later in my analysis.

The Robbery of the Delivery Driver

[14] The evidence on this subject is found entirely in the homicide intercepts (Exhibit 6), primarily in two intercepts on July 29, 2020. While I recognize that the recordings are the evidence, I will refer to the transcripts of these intercepts which are tabs 1 and 2 of the transcripts of the homicide intercepts.

[15] These intercepts were recorded via probes placed in Mr. Al-Ramahi’s Mercedes. The quality of the audio is often poor. There are many “unintelligibles” in the transcripts. It sounds like the accused is at times speaking to persons who are with him in his vehicle while at other times he is speaking with persons via cell phone through the vehicle’s speaker system. Some of the parties he is speaking with are unknown persons.

[16] It is an agreed fact that Mr. Al-Ramahi’s voice has been correctly identified in the transcripts of all the intercepts. It is also an agreed fact that Maywand Baregazy was a delivery driver for Sickspensary. I will refer to Mr. Baregazy as Maywand as that is how he is referred to in the intercepts and how he was referred to at trial. Maywand’s fingerprint was found on a Sickspensary bag located in the deceased’s residence. Numerous bags of Sickspensary products were in the deceased’s residence when a search warrant was executed after the shooting.

[17] The intercepts in tab 1 commence at 9:36 p.m. Maywand is one of the participants in the conversation together with Mr. Al-Ramahi, a man believed to be Mohammad Khalaf, two unknown males, and at times a female named Raquel DaSilva with whom the accused had a personal relationship.

[18] It seems from the intercepts that a Sickspensary driver, probably Maywand, had been robbed that day while making a delivery. The accused tells Maywand “its okay” because Maywand has agreed to cover the loss from the robbery. The accused says to Maywand “…now you just have to handle the situation.” Maywand is concerned because he says he “grew up with this guy we kept vouching for this guy…”, referring to the robber.

[19] A short while later the accused tells Khalaf, who seems to be in the car, to tell Maywand “to go get the money from him right now.” When Khalaf asks “from who”, the accused responds “Saleh”. Khalaf says, “He doesn’t have the money right now.” The accused then tells Khalaf to call “him”, presumably Salah, to ask “when he’s gonna have the paper”. The accused says he does not want to sell him more “weed” until this gets cleared up.

[20] In closing submissions, defence counsel emphasized that the plan at that time was to go and collect the money from Salah, not to murder him.

[21] At this point I would mention that it is an agreed fact that there were numerous communications between the cell phone number associated with the deceased Mr. Salah and the “retail” phone line associated with Sickspensary between July 3, 2020 (well prior to the robbery) and August 3, 2020 (the day of the shooting). A chart of the many texts and calls between these numbers is found in Appendix B to the Agreed Statement of Facts (Exhibit 1). However, there is no evidence as to the nature or content of those communications. Based on Mr. Al-Ramahi’s instructions to try to get the money from “Saleh” it is reasonable to infer that at least some of those contacts were for that purpose.

[22] Returning to the intercepts on July 29, 2020, defence counsel submits that most of the intercepted communications on that day are exculpatory. Counsel also correctly points out that in the July 29, 2020 intercepts, at both tabs 1 and 2, the accused distances himself from engaging in any response to the robbery.

[23] At tab 1, commencing at p. 9 and continuing into tab 2, it seems that the accused has been advised that the robber or robbers are at a plaza, although precisely what he was advised of is not clear as there are many parts of the intercept which are unintelligible. At tab 1 Mr. Al-Ramahi is heard telling an unknown male, who may be Maywand, “You gotta handle this problem you go fix this brother.” The accused also says, in the context of being asked to send someone to the plaza, “I don’t give a flying fuck buddy I’m sending nobody nowhere.” The accused also says “…you robbed me…I don’t know this guy.” The accused also tells the unknown male, “…it’s your mistake it’s not my mistake…I’m not gonna fix your mistake for you.” After an unintelligible comment by the unknown male the accused says, “Send your little n_ _ _ _ _s over there you deal with it you figure out what’s going on fam”. Soon he adds, “I don’t give a fuck if he’s in the plaza…you figure out what’s going on fam’ I’m not sendin’ none nobody I’m not jeopardizing nobody’s freedom for your mistake…”. The accused goes on to say that to do so would not be “halal”, which is translated in the transcript as “permissible”. The accused also told the unknown male that if “he’s on the plaza you go you guys go do what you guys your (sic) from the street (unintelligible) so handle it how the streets would handle it brother.” The accused also said, “A man done dissed you he violated you he never violated me my driver got in the way with you.” Towards the end of the intercept at tab 2 the accused tells the unknown male, “You know how we get down brother no phone calls are gonna get to be made I know what I have to do you know what you have to do.”

[24] At tab 2 the accused says during his continuing conversation with an unknown male “…we we’re not killing people because we want to we’re not killing people (unintelligible) its not a good thing to do brother.” In the spot marked unintelligible the defence submits the accused said, “because it’s bad for business”. I am not able to hear that and cannot make that finding.

[25] This comment is part of a longer conversation with other areas marked unintelligible. I conclude the context is not clear enough to permit me to determine whether this statement is relevant to proof of guilt. I have limited its use to considering it only as being of some potential exculpatory value.

[26] The accused’s conversation with the unknown male (tab 2) continues. Crown counsel submits it shows that Mr. Al-Ramahi favours targeted killing, like the one being prosecuted here. Mr. Al-Ramahi says, “…it’s a message you have to send and silence the person.” After that he talks about why it is better to shoot someone in the face than in the legs. He mentions that the Mexicans just wipe everyone out and says that is not teaching a lesson. He expresses the view that if you shoot them in the legs “…you learn attempt murder you learn the most lesson next time make sure its murder...” He says then “…nobody’s coming to talk on the stand…”. Then he added: “That guy is silent under the morgue and you keep silent by shutting your mouth.”

[27] A little later the accused says, “But Maywand knows Maywand’s gonna go deal with them directly you gotta talk to Maywand and ask him like, okay this guy what happened, okay this guy what happened, okay this guy what happened, you get what I’m saying to you.” I have added commas not found in the transcript to reflect that the accused is asking the person he is speaking with to find out what role each of three people had played. That is my finding having listened to the intercepts.

[28] It is difficult to see how this evidence is of assistance to prove that the accused was responsible for arranging the shooting of Mr. Salah other than by the prohibited means of bad character reasoning which I must not engage in. In addition, the accused says at that stage that Maywand is going to handle it. I am of the view, however, that the last part of the intercept which I have referred to shows that Mr. Al-Ramahi wanted to obtain more information from Maywand about what roles each of three persons played in the robbery. This shows an ongoing interest in what occurred. It helps to establish that the accused was not entirely letting go of the matter.

[29] This is the last intercept before the shooting, which occurred five days later on August 3, 2020 at around 9:30 p.m.

[30] Crown counsel points to the numerous contacts between the Sickspensary retail phone line and the deceased’s cell phone in the subsequent days leading up to the shooting. Crown counsel submits that as time progressed Mr. Al-Ramahi’s attitude changed, as reflected in his intercepted communications subsequent to the shooting. I will deal with those intercepts after I deal with the evidence related to the shooting, which is the next significant event in the chronology.

The Shooting

[31] The shooting took place in a townhouse complex located immediately to the east of Mavis Road, a major multi-lane north-south artery in Mississauga. The complex is also immediately north of Huntington Ridge Drive. The entire complex has the address 675 Huntington Ridge Drive. There are 123 units. The complex is high density. There is an internal roadway system within the complex accessed by vehicular traffic via driveways from Huntington Ridge Drive to the south and Guildwood Way to the east.

[32] The deceased lived in Unit 40. Unit 40 is the seventh unit to the east of Mavis Road. It fronts onto the north side of an internal roadway that runs east to the driveway in and out of the complex from Guildwood Way. While there is no vehicle access from Mavis Road, there is a paved walkway for pedestrians which runs from the public sidewalk on the east side of Mavis Road into the complex. It connects to the internal roadway leading past the front of Unit 40.

[33] By adding together various measurements taken by the police it is apparent that the distance from the east curb of Mavis Road to the western edge of the short driveway to Unit 40 is, roughly, 178 feet. The townhouses at that location are quite narrow. It would not take long to cover the less than two hundred feet from Mavis Road to Unit 40 on foot.

[34] No witnesses to the shooting were called to give evidence. The first police officer to arrive on scene testified that he heard a police radio call about the shooting at 9:37 p.m. and arrived at 9:42 p.m. Security camera footage from a distant location, which had audio, reveals that the first shot was fired at 21:35:47, or 9:35:47 p.m. The time stamps on the security video were found to be accurate by the police.

[35] The security video was recovered by the police from a residence located on the west side of Mavis Road. Mavis Road is a wide multi-lane thoroughfare. It also appears that there is a boulevard on each side of Mavis Road. The distance between the camera and the scene was not given in evidence. However, the camera’s orientation is such that it looks east across Mavis towards the walkway previously mentioned and eastward down the internal roadway upon which the deceased’s residence was located.

[36] I note, however, that the camera’s view is quite wide. Thus, when video from the camera is displayed the area of the shooting occupies only a very small portion of the frame. To see the area of the shooting that portion of the frame must be electronically isolated and enlarged by means of the software employed to view the videos. As that is done the quality of the video is further reduced. This process of isolating and enlarging the video frame was utilized in the courtroom during the trial.

[37] Three video clips were played repeatedly during the testimony of Cst. Amy Armstrong, who had been tasked with recovering and presenting the video. The video recordings played in court commenced at 21:33, or 9:33 p.m. on August 3, 2020. I will refer to the time stamps as they appear on the video. It was only with the benefit of repeated viewing and Cst. Armstrong’s testimony about where to look that the following can be discerned from the video.

[38] At 21:33:25 a vehicle, which may be an SUV, stops at the east curb of Mavis Road facing northbound with its four-way flashers on. Traffic on Mavis is continually passing the vehicle. At approximately 21:33:38 the front driver’s door opens, based on a change in reflection from that area of the vehicle. At 21:33:43 it appears that someone walks past the front of the vehicle because the light from the vehicle’s headlights is interrupted. It is not possible to tell whether anyone else got out on the passenger’s side of the vehicle.

[39] The second video clip shows the parked vehicle sitting on Mavis Road with the four-way flashers operating.

[40] The third video clip reveals the sound of multiple gunshots over a matter of about six seconds, commencing at 21:35:42. This is approximately two minutes and four seconds after the driver exited the vehicle on Mavis Road. In total, I make out the sounds of about 12 gunshots. Sometimes when counting I thought there were 10. Once when counting I thought there were 13. However, several times when counting I counted 12. I am satisfied on a balance of probabilities that there were 12 shots.

[41] Although police testimony was given that there may have been echoes, I can only say that what I heard does not sound like it includes an echo. I also observe that two of the shots, heard after the initial shots were fired, sound distinctively different than the other shots. At least two of the shots are louder booms while the rest of the shots are uniform and might be described as having a sharper report or less booming sound.

[42] At approximately 21:35:47 some muzzle flashes can be seen if you look carefully and know where to look. This is around the point of perhaps the fourth or fifth shot. Shadows can be seen moving about during and just after the shooting. Some muzzle flashes can be seen during part of that movement. No detail can be made out. It appears that one shadow moves to the right on the screen and then back to the left on the screen. Then a second shadow is seen moving to the left. This could represent persons moving away from and then back towards the direction of Unit 40.

[43] On the other hand, as Crown counsel submits, because it is impossible to see enough detail to assess depth on the two-dimensional screen, such movements might reflect two persons moving along the walkway back towards the vehicle. This submission is based on the fact that the walkway is shaped like an S and there is a fence along the sidewalk on Mavis Road. In combination, these features would direct persons leaving the western end of the internal roadway via the walkway to move to the north to the opening in the fence. I observe that even if someone departing the scene took a short cut across the grass inside the development, they would still have to move to the north to pass through the opening in the fence near where the waiting vehicle was parked.

[44] At 21:35:53 it appears that someone returning to the vehicle passes through the headlights of the waiting vehicle. At 21:35:55 the driver’s door opens and closes and the vehicle proceeds north on Mavis. It cannot be determined whether anyone entered the passenger side of the vehicle.

The Police Investigation of the Scene

[45] Det. Cst. Jeffrey MacPherson arrived at the scene at 9:42 p.m. Constable Kyle Motyka arrived at 9:43 p.m. Both had heard a radio call at 9:37 p.m.

[46] Det. Cst. MacPherson observed that the victim had a gunshot wound to his right temple above his right eye. The victim was being tended to by his mother on the front step of the townhouse. She had her son’s head in her lap. The victim was bleeding heavily. Det. Cst. MacPherson took over and applied a bandage and clotting agent with first aid supplies given to him by Cst. Motyka. The officer said there were five to six people in the doorway observing. He was trying to get them out of the house to preserve evidence and because he did not know whether the shooter was in the house. He said the scene was chaotic.

[47] Paramedics arrived and took over care of the victim. Tactical officers arrived and cleared the house. Det. Cst. MacPherson marked the location of shell casings and had the crime scene taped off. The tactical team leader advised MacPherson that he had seen a firearm and a loose round in an upper bedroom of the townhouse.

[48] Cst. Motyka testified that two of the victim’s brothers, Abdi-Aziz Salah and Abdul (Abdullahi) Salah, were present, as well as the victim’s mother, Khadra Ani. A younger brother was inside the residence. Cst. Motyka tried to keep the brothers and mother with him. The officer said he tried to get a “story line” but was not able to. The brothers were nervous and not cooperative.

[49] Based on the evidence of the officers taken together I would add the following. The door to the single car garage was open when police arrived. The victim’s mother was upset and hard to communicate with. Cst. MacPherson said he received some information that the victim was in the garage before the shooting. This is hearsay and not admissible. Cst. Motyka said one of the brothers made some mention of an argument. This is also inadmissible hearsay.

[50] There was obviously sufficient time for some evidence to have been removed from the scene. Some minutes also passed before Cst. MacPherson temporarily marked the location of the shell casings and taped off the scene. Shell casings are generally ejected back and to the right from a semi-automatic handgun. Shell casings can be moved by being kicked or blown by the wind, and they can be picked up and removed from a crime scene.

[51] Two officers from the Forensic Identification Service (FIS) testified at trial and provided numerous photographs of the scene as it appeared that night and the next day. They also provided photos of items found when the interior of the Salah residence was searched pursuant to a warrant. Det. James Howard did the work the night of the shooting. Det. Cst. John Moco attended the scene during daylight the next day.

[52] I will not review the evidence of the FIS officers individually. This evidence, together with additional photographs tendered by the Crown and the defence and found in the agreed statement of facts, leads me to the following observations and findings.

[53] First, I focus on the outside of the residence. Eight shell casings were found on the internal roadway to the south and west of the front door and driveway of Unit 40. They were all 9 mm. casings, but they were from three different manufacturers. The shell casings were in a V shaped pattern with the open end of that shape closer to the driveway of Unit 40 and the point of the V shape closer to the location where the walkway from Mavis Road meets the internal roadway of the townhouse complex. The location of the casings, with numbered evidence markers or cones, is depicted in several photographs. Cone 1 is at the point of the V shape closest to the walkway to Mavis Road. Cone 8 is the closest to the driveway and front door to Unit 40.

[54] From the curb of Mavis Road to cone 1 is 90.2 feet. The distance from cone 1 to cone 8 is 52.4 feet. The distance from cone 8 to the near edge of the driveway to Unit 40 where it meets the road is 35 feet.

[55] One casing was manufactured by “Blazer”, three were manufactured by “F.C.” and four were manufactured by “IMI”. I observe that this does not necessarily mean that there were three shooters as 9 mm. ammunition from different manufacturers could be mixed and fired from one or more firearms.

[56] The pathology report indicates that a “minimally deformed bullet” was recovered from the back of the deceased’s skull. The calibre is not reported. The range from which the fatal shot was fired is described as “indeterminate”.

[57] A lead projectile was located and photographed on the front step of Unit 40 (Cone 10). This is the only area outside the townhouse where blood was located. A bullet strike was also located in a tree. Based on the photographs, the tree is between the shell casings on the roadway and the front door area of Unit 40.

[58] A bullet also struck and passed through the rear passenger compartment of a white Honda Accord parked in the relatively short driveway of Unit 40, just outside the open garage door. The officers testified that that projectile continued on and penetrated a Mazda motor vehicle parked in front of the next unit to the east, Unit 42.

[59] A copper jacket from a projectile was located on the front lawn of Unit 40 (Cone 11) and a copper jacket was also located near garbage bins that can be seen in photographs of the garage area (Cone 12). A copper jacket from a bullet was also found far down the internal roadway to the east, near Units 68 and 70.

[60] More than one police officer testified that bullet strikes and projectiles can be hard to find. It is apparent that fewer projectiles and/or jackets were located than shell casings and fewer shell casings were located than the 12 shots heard on the security video.

[61] The police did not find any evidence of bullet strikes or projectile fragments on the south side of the internal roadway which would support a finding of shooting outbound from the area of Unit 40. They looked for such evidence. There are other townhouses on the south side of the internal roadway. However, I again mention the police testimony that such evidence can be difficult to find.

[62] I also observe that it is well known that some types of firearms, such as revolvers, do not eject spent shell casings automatically. This came up in submissions and was not a controversial point in this trial.

[63] Photographs entered by the defence show that there was a seating area in the garage and that a blue cell phone was found there. As mentioned, the garage door was open and a projectile jacket fragment was found in the garage.

[64] A search warrant was executed on Unit 40 on August 4, 2020. In an upstairs back bedroom the police located a significant quantity of pre-packaged Sickspensary marijuana, together with a handgun. Maywand’s fingerprint was on one of the Sickspensary bags.

[65] The handgun is a Bond Arms “Snakeslayer 4” single action 45-calibre pistol. It is an over and under style break action two shot weapon. It is capable of firing 45-calibre bullets or 410-gauge shotgun shells. The firearm was loaded with two 45-calibre rounds. The hammer was cocked and it was ready to fire.

[66] The handgun was resting on what appears to be a gym bag which is sitting beside a plastic tote containing the Sickspensary products. In that bag the police located a quantity of ammunition consisting of 30 45-calibre Hornby, 46 45-calibre Winchester, three 45-calibre G.F.L., two 45-calibre Sig, six 9 mm. Luger, and one 22-calibre rounds.

[67] The police located five more 45-calibre rounds, two 38 special rounds, five 22-calibre rounds and six 410-gauge three-inch long shotgun shells loose on the floor of a back bedroom. In a drawer of a side table the police found eight 45-calibre bullets and the victim’s passport.

[68] Aside from the 45-calibre Snakeslayer, no other firearms were found in the residence. However, the deceased’s cell phone was seized and examined. Photographs of several firearms were located on the cell phone. They are found in Appendix D to the agreed statement of facts. There are 13 such photographs. They depict what appear to be various semi-automatic handguns, including some with extended magazines. Two handguns are depicted together, one with what appears to be either a light or a laser illuminator mounted under the muzzle. There are also two photos of what appears to be a short assault style automatic rifle. The deceased is depicted in some of these photos.

[69] While it is agreed that it cannot be determined whether many of the images were taken, received or accessed by Mr. Salah’s phone, it is agreed that some of the photos were taken on his phone. That includes the photos of the assault rifle and two photos of a hand holding a handgun, including one with an extended magazine protruding from the handgrip. There is also a photograph of Mr. Salah taking a “selfie” in a mirror while holding what appears to be a semi-automatic handgun. His face is clearly seen. There is also a picture of a hand holding the Snakeslayer.

[70] Defence counsel submits that against the background of this evidence and the approximately seven minutes which elapsed between the shooting and the arrival of the police, there was an opportunity for the brothers of the deceased to collect any shell casings from rounds they or the deceased fired and for them to dispose of any firearms which they fired that evening.

The Remaining Homicide Intercepts

[71] Aside from the separate Sickspensary intercepts introduced for the limited purpose of showing motive, animus, means and providing context, the balance of the evidence consists entirely of the remaining homicide intercepts. I will review them in chronological order and relate them to the timeline. I will refer to them by the tab number of the transcripts of the homicide intercepts (Exhibit 6).

[72] I recognize that it is the recordings which are the actual evidence and that should I detect any difference between the transcripts and the recordings, the recordings govern. In addition, the transcripts indicate that many parts of the recordings were “unintelligible” to the transcriptionist. In some cases, Crown and defence counsel have provided submissions about what they hear in some of the locations where “unintelligible” appears in the transcript. Some of those submissions are significant and I will make findings about what can be heard in some places, marked as “unintelligible” in the transcripts, which bear on significant points.

[73] With respect to the notation “unintelligible”, I observe that in some circumstances where that word appears in the transcripts there seem to be only a word or two, or a few words, that are difficult to make out. However, in other places where “unintelligible” appears in the transcript, listening to the recordings reveals that much longer passages, sometimes of considerable length, cannot be made out.

[74] Against this background I keep in mind that context can be important when attributing meaning to words. A missing word or words can dramatically impact or change the meaning of words that can be heard. In some situations, a lack of context may so undermine the probative value of words that are heard that the evidence is rendered inadmissible.

[75] No inadmissibility argument has been advanced in respect of any of the intercepted communications based on missing context. However, when evaluating whether any probative value should be assigned to intercepted words that are said to constitute an admission, the inability or limited ability to comprehend surrounding words and phrases must be considered. If a statement is found to be partially inaudible it must not be used as an admission of guilt unless I am satisfied that the meaning of the statement as a whole can be determined from its context: R. v. Merritt, 2023 ONCA 3, 165 O.R. (3d) 43, at paras. 60, 79-81, leave to appeal dismissed [2023] S.C.C.A. No. 48; R. v. Schneider, 2022 SCC 34; R. v. Ferris, 1994 ABCA 20, aff’d 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756; R. v. Hunter (2001), 2001 CanLII 5637 (ON CA), 155 C.C.C. (3d) 225, 54 O.R. (3d) 695 (C.A.).

[76] I also take from these authorities that in circumstances where the context is sufficient for me as the trier of fact to attribute probative value to words, the fact that some surrounding words and passages are unintelligible may nonetheless affect the extent to which the court is willing to rely on such statements in reaching a verdict.

[77] I turn now to the remaining homicide intercepts considered in chronological order.

Tab 3 - August 4, 2020

[78] This conversation was intercepted on August 4, 2020 starting at 12:55 p.m. by means of a probe placed in the accused's Mercedes. It is the first intercept in evidence following the shooting of Mr. Salah, which was the evening before. The accused is speaking with an unknown male and with a female believed to be Raquel DaSilva.

[79] Near the beginning of the intercept the accused is speaking to the unknown male about reading the Art of War. He says that "casualties will come, don't feel bad about casualties". However, it seems from what is said before this, that he is speaking about something related to "Jane and Sheppard kids". There is no evidence linking such terminology to Mr. Salah, his family or this shooting.

[80] Mr. Al-Ramahi's conversation with the unknown male is interrupted by his conversation with Ms. DaSilva, which is related to using Instagram.

[81] When the conversation with the unknown male resumes the accused indicates that the previous evening he fell asleep and then woke up and watched CP-24, a 24 hour television news service. He also tells the unknown male that he closed Sickspensary down at 4:30 p.m. the previous day.

[82] Crown counsel submits that this should be interpreted as an indication that Mr. Al-Ramahi knew the previous day that Mr. Salah was going to be killed the following evening and that he shut down his business early and after going to bed, woke up and purposefully watched CP-24 to check on whether the killing had taken place as arranged.

[83] I am unable to place this interpretation on this intercept even taking all the other evidence into account. As defence counsel points out, there is an alternate explanation which is supported by other things said in the intercept. Towards the bottom of p. 3 of tab 3, Mr. Al-Ramahi says words which indicate that he had gotten behind in bagging up product. He said he had to go bag up eight pounds. He said that the previous day he had to "shut down the company at 4:30 because I was busy fam I'm behind three days bro so I'm shutting down one day."

[84] In addition, there is nothing in this intercept to link either the early business closure or getting up to watch CP-24 to the shooting of Mr. Salah. No other evidence in the case suggests such a link. The reference to waking up and watching CP-24 is as consistent with insomnia and watching television as a result as it is with anything else.

[85] I conclude that Crown counsel's submissions regarding this intercept are speculative.

Tab 4 - August 4, 2020

[86] This intercept is also of a conversation that takes place in the accused's Mercedes. Mr. Al-Ramahi is speaking with an unknown male. Parts of the conversation have been edited out as inadmissible and the transcript has been redacted accordingly.

[87] In the unredacted part of the intercept everything the unknown male said is marked as "unintelligible". It is impossible to make any of it out by listening to the recordings. In addition, while what Mr. Al-Ramahi says is easier to hear, some of what he says is also unintelligible.

[88] The first approximately one minute and 13 seconds of the intercept is unintelligible. The accused can then be heard saying, "Whoever opens that door is gonna catch a (unintelligible) I don't care if it's the fucking father". I pause to point out that Mr. Salah had been shot the day before but in this passage the accused is speaking in the future tense. In addition, while there is evidence that Mr. Salah lived with his brothers, sister and mother, I heard no evidence that his father lived in the townhouse where the shooting occurred.

[89] Mr. Al-Ramahi then talks of paying "these guys everybody's debt" and he speaks of paying his jeweler. None of this seems relatable to an arrangement to murder Mr. Salah.

[90] The accused then speaks about sending "Maltock" or "brother Matlock" to "shoot them". Once again, this is prospective. Mr. Salah has already been shot, although he is still alive in hospital. An unintelligible conversation then ensues.

[91] The following statements made by Mr. Al-Ramahi were then intercepted. This passage is an important one and I will quote it as it appears in the transcript. The use of italics indicates that the transcriptionist has inserted an interpretation. By way of an example taken from other intercepts, the transcriptionists will often type permissible where the word spoken is "halal".

AL-RAMAHI: (unintelligible) a there’s no check I don’t have to pay them like right now they don’t want nothing right now like right now I told them yo if you get the Ah-E you get the money if there’s no Ah-E no money but I’m gonna go right now I’m gonna go see them right now yeah yeah I have with me right now I’m gonna give I told I told Bob I told Bob I’m gonna give it to them I’m gonna give it to them but I’m intimidate them up I’m paying you guys out of respect I give you guys courage but next time if the job is not done you won’t get paid

d91a695ff5c24a6da5bb8a40aa3b0ccb-28

UNKNOWN MALE: (unintelligible)

AL-RAMAHI: I gave it to this guy (unintelligible) he’s five (5) foot five (5)

UNKNOWN MALE: (unintelligible)

AL-RAMAHI: I don’t know yeah I think it’s the same guy I told them listen there’s three brothers six (6) feet tall Somalians any six (6) foot tall Somalian you see (unintelligible) sister (unintelligible) anything Somalians coming out of that house that you (unintelligible) give it

[92] Defence counsel submits that where the translated word "intimidate" appears in the transcript he hears "dap them up". Crown counsel submits she hears "bad them up". In my view, it could be either. Nothing turns on this difference.

[93] After the passage just quoted, approximately one and a half pages of inadmissible evidence has been redacted from the transcript. Mr. Al-Ramahi can then be heard saying the following words. It seems to me that the last half of the quote below is of some significance. I have included all of what was transcribed for context.

AL-RAMAHI: That’s not good fam even you even you were talking like what is it (unintelligible) on the phone we talk but like shut the fuck up don’t (unintelligible) go inside you don’t have to tell people anything if you’re gonna do just do it in silence why you think I like fucking little (unintelligible) that got that guy

d91a695ff5c24a6da5bb8a40aa3b0ccb-28

UNKNOWN MALE: (unintelligible)

AL-RAMAHI: They don’t fucking speak they don’t wanna they don’t wanna know they don’t wanna know (unintelligible) you know what I mean brother they wanna go shoot the guy that’s it that’s why I love them

[94] Crown counsel submitted that more words can be heard on the recording than have been transcribed in the last two lines of the first passage quoted above. Having listened to the recording several times in quiet surroundings I find that the accused actually said, "...why you think I like those fucking little twerps that got that guy the other day." The underlined words are the additional words I hear.

[95] Crown counsel submits that in the context of the evidence as a whole these statements by Mr. Al-Ramahi are a clear indication that he arranged to have Mr. Salah killed in return for payment. Crown counsel stresses that the description in the first passage of who lived in the house matches the household where Mr. Salah lived. It is an agreed fact that the deceased lived with his mother, sister, and three brothers. The autopsy report attached to the agreed statement of facts indicates that the deceased was 6'1" tall and weighed 165 lbs. His photo shows that he was Black.

[96] In addition, Crown counsel points out that it makes sense that because Mr. Salah was still alive, the shooter or shooters did not expect payment.

[97] Defence counsel points out that there is no evidence that the deceased and his family are Somalian. Defence counsel agrees that the accused is speaking in the past tense, saying he "told" them if you get the Ah-E you get the money. Counsel submits it is significant that we do not know when in the past the accused told this to anyone. It is submitted that this is a significant weakness tending to undermine attribution of these statements by Mr. Al-Ramahi to the killing of Mr. Salah. Defence counsel also submits that these statements could merely be puffery or taking credit after the fact when there was no arrangement in place prior to the shooting.

[98] I will deal with these submissions later in my analysis. At this point I merely note that unlike some of the other homicide intercepts, this one is potentially of greater significance. There is no direct evidence what "Ah-E" means.

Tab 5 - August 4, 2020

[99] This intercept is again from a probe placed in Mr. Al-Ramahi's Mercedes. Mr. Al-Ramahi is speaking with an unknown male. Much of the intercept has been redacted as inadmissible.

[100] In the brief unredacted portion of this intercept the accused tells the unknown male he is speaking with, "...the black balling is coming off slowly." He says that what he is doing behind the scenes and everything else he is doing is "adding up" and that "a lot of people are starting to know what our power is...what my reach is..."

[101] Crown counsel submits this passage is evidence of planning and that it should be considered against the background of the numerous communications between the deceased's cell phone and the Sickspensary retail phone line. Crown counsel extrapolates the reference to "power" and "reach" to killing Mr. Salah to send a message.

[102] Defence counsel correctly points out that we have no evidence to help us understand what the reference to "black balling" is about and that the references to power and reach could simply be a reference to the reach of Sickspensary. There are other intercepts, including in the Sickspensary intercepts (Ex. 7), which show that Sickspensary was a successful and expanding enterprise.

[103] I am unable to find that this intercept, considered alone or in the context of the other evidence, adds anything to the proof of the Crown's case. There is no evidence which connects these comments to the shooting of Mr. Salah. It is apparent from the evidence overall and the context of the investigation that Mr. Al-Ramahi was likely involved in a variety of criminal activities. Of course, bad character or impermissible propensity reasoning is something I must be careful not to engage in. I conclude that this intercept has little probative value.

Tab 6 - August 6, 2020

[104] This is an important intercept. The intercept was made by means of a probe or probes in the master bedroom and kitchen area of an apartment allegedly used as a stash house. Mr. Al-Ramahi is speaking to an unknown male. The words spoken by Mr. Al-Ramahi are clearly audible. However, it is difficult to hear parts of what the unknown male is saying and the quality of the recording of the unknown male’s speech is poor. It sounds "tinny" and distant. It sounds like the unknown male may be at a different location and the two are communicating via the speaker on a phone or cell phone at the accused's location.

[105] The first approximately 50 seconds of the recording is redacted as inadmissible. The unknown male and the accused then begin to discuss some "guys" who the unknown male says are "fucked up". There are a few comments about being "dropped out". This seems unrelated to the homicide.

[106] Mr. Al-Ramahi can then be heard counting out loud to himself. Scraping sounds can be heard at other points during the intercept. It sounds like Mr. Al-Ramahi is measuring out or packaging drugs.

[107] At approximately one minute and 29 seconds into the recording (transcript p. 4, top of page) the unknown male says something which the transcriptionist marked as "unintelligible". Mr. Al-Ramahi responds to that. His response is clear and easy to hear. However, the meaning of what Mr. Al-Ramahi said in his immediate response is unclear in the absence of an understanding of what the unknown male said just before.

[108] Crown counsel submits that what the unknown male said where the transcriptionist typed "unintelligible" is, "...man in hospital in critical died." Defence counsel submits that he is not able to hear these words. Mr. Al-Ramahi's clearly heard response is, "I know (pause) better thing (pause) I told them mission complete n _ _ _ _ _ s". I have added the word "pause", which does not appear in the transcript, to accurately describe how the accused's speech flowed. I have not included the complete spelling of the racial epithet used at the end of the accused's sentence.

[109] I have listened to this intercept dozens of times on different days, with and without headphones, in the courtroom and in quiet conditions. I find as a fact that in the "unintelligible" marked in the transcript and described above the unknown male says substantially what Crown counsel submits can be heard. I will elaborate.

[110] At 1:29 of the intercept Mr. Al-Ramahi is counting out loud to himself. At about 1:32 the unknown male starts speaking. At about 1:36 Mr. Al-Ramahi starts his reply by saying "I know that...". The first several words spoken by the unknown male at 1:32 cannot be made out, but he ends his fluid statement with "...in the hospital in critical ends up dying." I am not sure whether the words before "in the hospital" are "the man" or "the guy". However, I find this passage to be a clear reference to a person in hospital "in critical" who has died. It is an agreed fact that Mr. Salah died at St. Michael's hospital in Toronto on August 5, 2020 at 3:51 p.m. That was just under 24 hours before this interception was recorded.

[111] There is more to this intercept which is of significance. After the accused says, "I told them mission complete n _ _ _ _ _ _s", the unknown male says one or two words, which are unintelligible. Mr. Al-Ramahi then says, "I said make sure you’re on call twenty-four seven. I will make you guys guys terrorized. I told them we will give you the heavy machinery and see what you're capable of." After a brief unintelligible comment by the unknown male Mr. Al-Ramahi continued, "Next time I send them I'm gonna send them with a baby Drako." I have added punctuation where appropriate, which does not appear in the transcript.

[112] Following these statements Mr. Al-Ramahi asks rhetorically, "You know who I'm gonna send them with a baby Drako to?" When the unknown male responded "who", the accused referred to a person whom he said he would make have "missing limbs you know…like in war back home videos." Additional comments were made, which support the conclusion that the references to "heavy machinery" and "a baby Drako" were references to heavy or automatic weapons.

Tab 7 - September 29, 2020

[113] This intercept was made by means of a probe in the kitchen area of an alleged stash house. Much of the intercept has been redacted as inadmissible. The accused is speaking with two named persons and three unknown males.

[114] At p. 7 of the transcript a discussion is underway about using gloves and about DNA. There are references to "the homicide thing". Mr. Al-Ramahi talks of what sounds like his "driver’s" fingerprint being found and refers to what can be interpreted as the police thinking "they got smoked by a Sickspensary (unintelligible)” [driver]. He mentions one of the driver’s fingerprints was on a bag and that the police went to the driver's house.

[115] It is an agreed fact that on September 23, 2020 police detectives spoke with Maywand and told him his fingerprint was on Sickspensary packaging found in the deceased's home.

[116] Participants in the conversation then say that they are going to purchase gloves.

[117] Beyond showing that the accused was staying up to date on parts of the police investigation of the homicide, I do not find this intercept to be of much assistance in relation to proof of the Crown's case. It is not contested that a Sickspensary driver was believed by the accused to have been robbed by the deceased, which provides a potential motive for the homicide. However, wearing gloves or masks while packaging marijuana in connection with an illegal drug delivery business would make sense for reasons entirely unrelated to the homicide.

The Sickspensary Intercepts

[118] Ex. 7 consists of 12 intercepts admitted pursuant to my pre-trial ruling on discreditable conduct evidence. The transcripts of the admissible intercepts (Ex. 7A) have the same tab numbers as the volume used during the pre-trial application, however, the tabs (intercepts) I ruled inadmissible have been removed. Therefore, the basis for my consideration of the admissible intercepts can be quickly determined by reference to the tab numbers referred to in my pre-trial ruling because the tab numbers in the pretrial ruling and the exhibit admitted at trial correspond. For this reason, I do not propose to review this evidence in any detail here. I will make brief reference to a few salient points.

[119] The Sickspensary intercepts show that the accused considered Sickspensary to be "his company". He clearly ran it by hiring and firing people and by giving them direction. In some of the intercepts he forcefully emphasizes in a domineering and controlling fashion that he expects his employees to be professional and hardworking. He expects them to be dedicated, on call and available to him.

[120] These intercepts also show that the accused took pride in his business. He describes at times how it is expanding (tab 7 and tab 8). That the business is linked to his self-image and self-esteem is shown, to pick one example, by his statement "Yo, my name sells itself" (tab 4).

[121] At tab 6 he says of an employee’s actions: "You are making my company a clown". He also says, "I'm part of an organization, I'm not a clown." At tab 18 he speaks of Sickspensary as "my company, I own it, I'm the owner". At tab 21 he mentions that there is "200k" at the office, which has both a retail and a wholesale phone line. At tab 22, he refers to himself as "a leader for you guys" and mentions that Maywand has been laid off.

[122] There is no direct connection between the Sickspensary intercepts and the homicide. However, as explained in my pre-trial ruling, this evidence is circumstantially relevant to proof of motive, animus, means and to provide context (narrative). I leave consideration of the degree of assistance this evidence provides to my section on analysis.

Applicable Legal Principles

[123] The primary evidence relied upon by Crown counsel to implicate the accused is found in the homicide intercepts. It is the Crown's position that the accused's own words, particularly as found at tabs 4 and 6 of the homicide intercepts, amount to an admission that he arranged and paid for the murder of Mr. Salah. Against this background, both Crown and defence counsel made early references in their submissions to s. 231(3) of the Criminal Code, which deems an arranged murder as defined in that section to be a planned and deliberate murder, rendering it first degree murder within the meaning of s. 231 (2).

[124] The first three subsections of s. 231 are best considered together in the context of this case.

231 (1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate.

(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death.

[125] It must be remembered, however, that s. 231 does not define murder. The purpose of s. 231 is to categorize a murder, established pursuant to the provisions of s. 229, as either first or second degree murder for sentencing purposes: R. v. Pare, 1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618, [1987] S.C.J. No. 75, at para. 13.[^1]

[126] Before s. 231(3) is considered it must first be established that Mr. Salah was murdered and that Mr. Al-Ramahi was a party to that murder. However, in the circumstances of this case evidence relevant to proof of an arranged killing pursuant to s. 231(3) is obviously also relevant to help establish culpable homicide, pursuant to s. 222 of the Criminal Code, and that such homicide was murder within the meaning of s. 229 of the Criminal Code.

[127] Insofar as those Criminal Code provisions are relevant in the circumstances here, they read as follows:

222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

229 Culpable homicide is murder

(a) where the person who causes the death of a human being.

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

[128] Given these provisions, I instruct myself as I would instruct a jury, that a person will be guilty of murder where it is proven beyond a reasonable doubt that they caused the death of another person by means of an unlawful act, and did so with either of the intents required for murder as set out in s. 229(a) of the Criminal Code.

[129] In this case it is not alleged that the accused was a direct participant in the shooting of Mr. Salah. However, it is alleged that he abetted and/or counselled the unlawful act that caused death with the intent required for murder and, therefore, is a party to murder pursuant to either or both of ss. 21(1) and 22(1) of the Criminal Code. Insofar as those sections are relevant, they read as follows:

21 (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

22 (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

(3) For the purposes of this Act, counsel includes procure, solicit or incite.

[130] In R. v. Briscoe, [2010] 1 S.C.R. 411, 2010 SCC 13, at para. 13, the Supreme Court of Canada reiterated that our law does not distinguish between principal offenders and aiders or abettors. They are equally liable for the criminal conduct they are involved in. However, also at para. 13, the court observed that the actus reus and mens rea for aiding or abetting "are distinct from those of the principal offence".

[131] At para. 14 the court described the distinction between aiding and abetting. The court held that to aid means to assist or help the perpetrator, while to abet "includes encouraging, instigating, promoting or procuring the crime to be committed": para. 14, citing R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, at para. 26.

[132] In Briscoe, at para. 16, the court noted that the word "purpose", found in s. 21(1)(b) dealing with aiding, has two components: intent and knowledge. The court then explained those requirements and did so in the context of the crime of murder. Significantly, for the present case, a reading of paras. 16-19 shows that the court intended its discussion of the intent and knowledge requirements to apply equally to both aiding and to abetting, although I note that the word "purpose" does not appear in s. 21(1)(c) of the Code, which deals with abetting.

[133] It is thus clear from Briscoe at paras. 14-19 that to obtain a conviction based on either aiding or abetting, the accused's conduct must be done for the purpose, that is with the intent, to assist or encourage the perpetrator. In addition, the act of either aiding or abetting must be done with the knowledge that the perpetrator intends to commit the crime charged, although they need not know precisely how the crime will be committed.

[134] The principles discussed in Briscoe were helpfully summarized by Watt J.A. in R. v. Huard, 2013 ONCA 650, at paras. 63-64, as follows:

[62] The conduct element requires proof that the aider or abettor provided actual assistance to the principal by doing something that assisted the principal to commit the offence or encouraged the principal to do so. It is not enough that the conduct of the aider or abettor had the effect of helping or encouraging the principal or resulted in the principal's committing the offence: Briscoe, at paras. 14-15.

[63] The fault element in aiding or abetting arises from the phrase “for the purpose of”, which is expressly stated in s. 21(1)(b) and is implied in s. 21(1)(c). The fault element includes both intent and knowledge. The aider or abettor must intend to help or encourage the principal to commit the offence and must know that the principal intends to commit that offence: Briscoe, at paras. 16-17. The aider or abettor need not share the intent of the principal to commit the offence: Briscoe, at para. 18.

[64] Since the actus reus and mens rea of aiding and abetting are different from the corresponding elements of the principal offence, jury instructions in a case in which an accused is alleged to have participated in the commission of an offence as an aider or an abettor should not only explain the essential elements in aiding or abetting, but should also link those elements to the essential elements of the offence charged, so that the jury understands what the Crown must prove to establish an accused’s liability for the specific offence as an aider or an abettor. Whether the aider or abettor is tried jointly with the principal, or, as here, separately, is of no moment – the principles governing the liability of the aider or abettor remain the same: Sparrow [(1979), 1979 CanLII 2988 (ON CA), 51 C.C.C. (2d) 443 (Ont. C.A.)] at pp. 457-458. [Underlining added.]

[135] I have added underlining to the above passage as counsel for the accused, relying on Greyeyes which is cited in Briscoe, emphasizes that the Crown must prove that the accused's conduct which is said to constitute abetting under s. 21(1)(c) or counselling under s. 22(1), is attached to the specific criminal act constituting the underlying offence.

[136] In terms of the conduct requirement, in view of defence counsel’s submissions concerning causation, I note that in R. v. Dooley, 2009 ONCA 910, at paras. 118-123, Doherty J.A. examined the nature of the connection that must be shown between an accused’s alleged act of aiding or abetting and the commission of the actual crime. At para. 121, Doherty J.A. held that “to find liability there must be a connection between the offence and the acts of alleged aiding or abetting…”However, he added that he would not use the language of causation to explain that connection because: “Some kinds of culpable assistance have no causative link to the crime committed.” He noted that the authorities take a wide view of the required connection. At para. 123 he held, “The necessary connection between the accessory’s conduct and the perpetrator's commission of the crime is captured by phrases such as ‘actual assistance or encouragement’ or ‘assistance or encouragement in fact’ or as the appellants argue, conduct that has the effect of aiding or abetting” (citations omitted).

[137] In terms of the conduct and fault components of becoming a party by counselling under s. 22 of the Criminal Code, that was dealt with by the Supreme Court of Canada in R. v. Hamilton, [2005] 2 S.C.R. 432, 2005 SCC 47, at para. 29:

29 In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct. [Italics in original.]

[138] If I conclude that the Crown has proven beyond a reasonable doubt that Mr. Salah was murdered and that Mr. Al-Ramahi was a party to that murder, then I must go on and consider whether the murder is first degree murder pursuant to ss. 231(2) and/or (3) of the Criminal Code.

[139] In terms of s. 231(2) of the Criminal Code, the Crown must prove beyond a reasonable doubt that the murder committed was both planned and deliberate. A planned murder is one that results from a calculated scheme or design that has been carefully thought out and the consequences of which have been considered and weighed. However, the plan need not be complicated. It may be a simple plan which was easy to formulate. "Deliberate" in the context of s. 231(2) means, considered, not impulsive, slow in deciding, cautious. The accused must have taken time to weigh the advantages and disadvantages of his or her intended actions. In respect of these requirements of planning and deliberation see R. v. More, 1963 CanLII 79 (SCC), [1963] 3 S.C.R. 522, [1963] 3 C.C.C. 289; R. v. Mitchell, 1964 CanLII 42 (SCC), [1964] S.C.R. 471, [1965] 1 C.C.C. 155; R. v. Widdifield (1961), 6 Crim. L.Q. 152; R. v. Reynolds (1978), 1978 CanLII 1269 (ON CA), 22 O.R. (2d) 353 (C.A.).

[140] In terms of s. 231(3), the subsection contains its own definition of an arranged murder. I have quoted the section above and will not repeat it. The thrust of the section is that something of value must be passed or be intended or promised to be passed from one person to another as consideration for "causing or assisting in causing" the death of another person: s. 231(3) of the Criminal Code. The arrangement must be in existence prior to the murder and the murder must be pursuant to the arrangement: R. v. Smith, 2007 NSCA 19, aff'd on other grounds, 2009 SCC 5. A gratuitous payment after the fact will not bring an accused within the subsection: R. v. Trudel (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321, O.J. No. 248 (C.A.), at paras. 151-153, leave to appeal refused, [2004] S.C.C.A. No. 246. While the Crown must establish that the killing was pursuant to the arrangement that need not have been the killer's sole motivation, provided there was some nexus between the killing and the prior arrangement: R. v. Petrin, SKCA100, at para. 102, leave to appeal refused, 2019 Can LII 6022 (SCC).

Analysis

[141] In the circumstances of this case, the essential elements of the offence of murder which Crown counsel must prove beyond a reasonable doubt are:

That the death of Abdifatah Salah was caused by an unlawful act;
That Mr. Al-Ramahi was a party to the unlawful act that caused Mr. Salah’s death, and;
That the accused had the state of mind (intent and knowledge) required for murder as an abettor under s. 21(1)(c) or a counsellor under s. 22(1) of the Criminal Code.

[142] A failure to prove any one of these essential elements must lead to an acquittal for murder. In some circumstances proof of the first two essential elements, accompanied by a failure to prove the third essential element, could lead to a conviction for manslaughter.

[143] If the first three essential elements are proven beyond a reasonable doubt, then the accused’s liability for murder will have been established. If it is also proven beyond a reasonable that the murder was both planned and deliberate or that it was an arranged murder as defined by s. 231(3) of the Criminal Code, then Mr. Al-Ramahi will be guilty of first degree murder.

The First Essential Element: Was Mr. Salah’s death caused by an unlawful act?

[144] It is common ground that Mr. Salah died from being shot in the head. However, during closing submissions Crown counsel did not identify any particular unlawful act, as defined by the Criminal Code, as a foundation for a murder conviction.

[145] I observe that in R. v. K.R.T., 2005 MBCA 78, at paras. 5-6, the court pointed out that the actus reus for unlawful act manslaughter is the actus reus of the predicate offence (the unlawful act). The same thing is true for murder.

[146] In K.R.T. the court overturned a conviction for manslaughter in circumstances where the misconduct of the accused was inherently dangerous and caused death because counsel and the court below had failed to identify a particular predicate offence and determine whether the essential elements of that specific offence had been proven (para. 12). The court commented that at trial the parties and the court below assumed the predicate offence to be mischief, but never turned their attention to which of the mischief offences described in the Criminal Code should be considered, or to the proof of the essential elements of such specifically identified offence.

[147] I will address this consideration in more detail below. Although it did not form any part of the defence submissions in relation to whether Crown counsel had proven the case against the accused, I mention it here as the overall defence submission is that the Crown has failed to prove the guilt of the accused because we do not know with any degree of precision what happened at the scene of the shooting. In this regard, defence counsel notes that we do not know who shot the deceased, we do not have a murder weapon, there are no ballistics, no witnesses to the shooting testified, and we do not have any direct evidence about what motivated the shooter or shooters.

[148] In addition, defence counsel emphasizes that 12 shots were fired but only eight shell casings were located. Given that quantities of ammunition were found in Mr. Salah’s residence, but that only one firearm was found, and given that there are photos of various firearms on the deceased’s cell phone, including photos of firearms being held by the deceased, the defence submits that there is an evidential basis to support a reasonable alternative explanation to the theory of the Crown’s case. The defence submits that there may have been a shootout or that the deceased and/or his brothers may have fired first and picked up their shell casings and disposed of their firearms. The defence submits that the Crown has failed to negative such reasonable alternative hypotheses beyond a reasonable doubt, leading to a failure to prove guilt in a circumstantial case.

[149] Defence counsel relies on Villaroman, at paras. 26-27. There Cromwell J. explained:

There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury may unconsciously “fill in the blanks” or bridge gaps in the evidence to support the inference that the Crown invites it to draw…

…When the concern about circumstantial evidence is understood in this way, an instruction concerning the use of circumstantial evidence and the reasonable doubt instruction have different, although related, purposes…

[150] As Cromwell J. also stated later, at para. 30:

Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.

[151] Defence counsel stresses that a reasonable doubt can result from the absence of evidence: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 40. Counsel submits that because there is a reasonable possibility that there was a shootout or that the deceased or his brothers fired first, there remains a reasonable possibility that there was an intervening act disrupting the chain of causation. As defence counsel put it in closing submissions, even if the accused arranged for people to attend the Salah residence, there is an “obvious gap in the chain of causation between their attendance and the death of Mr. Salah”, which counsel characterizes as a “significant alternate causal event”. The defence relies on R. v. Gervais, 2019 ABQB 344, at para. 333, and R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 48, in support of this submission and refers to the requirement for legal, rather than factual, causation.

[152] While the Crown did not identify a specific predicate unlawful act as the cause of death, it seems to me that three are readily identifiable. Those are assault, discharging a firearm with intent and intentionally discharging a firearm into a place, knowing that or being reckless as to whether another person is present. These offences are contrary to ss. 266, 244(1) and 244.2(1)(a) of the Criminal Code, respectively. I will focus on the offence of assault, which requires proof of an intentional application of force, applied directly or indirectly to another person, without that person’s consent: s.265(1)(a) of the Criminal Code.

[153] The evidence establishes that shortly before the shooting a motor vehicle parked on the east side of Mavis Road near the walkway which entered the townhouse development at a location close to Mr. Salah’s residence. The driver chose not to use a driveway into the development. The vehicle was parked at a location where it would not be observable from the area of Mr. Salah’s residence. The vehicle’s four-way flashers were left on, indicating that a short stop was intended. Two minutes after at least one person exited the vehicle 12 shots were fired over about six seconds. The driver then immediately returned to the waiting vehicle and proceeded north on Mavis Road. I also observe that the vehicle was not driven off in a panic or at a high rate of speed. It appears that the vehicle accelerated in a normal way to re-enter traffic. These are all signs of a purposeful visit with the vehicle being parked for an easy departure from the scene.

[154] There are many details we do not know about what happened at the scene. However, as we tell juries, it is not necessary that we know everything about what happened leading to an alleged crime, although we do need to know enough to determine whether the essential elements of the crime charged have been proven beyond a reasonable doubt.

[155] What we do know is significant when it comes to determining whether Mr. Salah’s death was caused by an unlawful act. First, Mr. Salah was shot once in the head from an indeterminate range. That gunshot eventually killed him. The autopsy report shows that Mr. Salah had no other injuries, let alone any suggesting that he had been in a fight or altercation.

[156] The only location where blood was found was on the small front doorstep where the police located Mr. Salah. There were two pools of blood on the step as shown in photographs.

[157] One bullet was removed from Mr. Salah’s skull during the autopsy. The police located a second lead projectile on the front step. A bullet struck a tree located between the area where the shell casings were found and the front step and the open garage door just a few feet away from the front step. A bullet also struck and passed through the white Honda Accord parked in the driveway close to the garage and the front step. A bullet jacket was found on the lawn between the shell casings and the front step area. Another bullet jacket was found in the garage. Although no bullet was located in the garage, photos show that the garage was cluttered.

[158] From this physical evidence I conclude that at least four and probably five shots were fired towards the front door and open garage door area of the deceased’s residence: one hit Mr. Salah in the head, one ended up on the front step, one hit the tree between the shell casings and the front step area, one hit the Honda Accord, and one likely went into the garage based on the bullet jacket found in that location. I have discounted the bullet jacket on the front lawn as that could have been from the bullet that struck Mr. Salah or the second bullet that hit the front step area.

[159] This number of shots directed at the front step and open garage door area, one of which hit Mr. Salah in a vital area of his body, likely while he was on or near the front step where he would be easily seen, is a strong indication of an intentional application of force directed at Mr. Salah. Mr. Salah undoubtedly did not consent to that application of force, which caused severe bodily harm, the infliction of which he could not have consented to as a matter of law in any event: R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714, 66 C.C.C. (3d) 454; R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339, 195 C.C.C. (3d) 97. Intentionally firing multiple shots at a person supports an inference that the shooter intended to cause serious bodily harm which they knew was likely to cause death and that they were at least reckless as to whether the victim would die as a result. Subject to any consideration of the shooter or shooters acting in self-defence, I find that an assault is established beyond a reasonable doubt by this evidence. Indeed, the shooter or shooters would be guilty of murder based on s. 229(a)(ii) of the Criminal Code.

[160] There is no air of reality, in my respectful view, to a suggestion that the person or persons who shot at Mr. Salah were acting in lawful self-defence. I do, however, allow for the reasonable possibility, given the discrepancy between the number of shots heard and the number of shell casings found, the association of Mr. Salah to firearms, and the ammunition found in the residence, that Mr. Salah and/or his brothers fired at the original assailant or assailants. However, I observe that Mr. Salah was at his residence prior to the shooting. It seems very clear that one or more armed persons attended at Mr. Salah’s location for a purpose that led them to leave their vehicle in a location suitable for a quick getaway and where it was unlikely to be noticed by Mr. Salah or his neighbours. All of these and other circumstances I have mentioned point to one or more well armed individuals going looking for Mr. Salah or his family members, resulting in a volley of bullets towards an occupied residence in circumstances where Mr. Salah was present to be seen and shot. If there was any form of potential self-defence going on at the time of the shooting, I conclude it was on the part of Mr. Salah or his brothers. Shots may have been fired by Mr. Salah’s brothers in response to the initial attack. I am unable to find that is what happened, but that has an air of reality. However, I conclude that it is completely speculative, having regard to the evidence as a whole, to consider that the person or persons who shot Mr. Salah were themselves acting lawfully when Mr. Salah was shot.

[161] I have not overlooked that a bullet jacket was found a considerable distance to the east of Mr. Salah’s residence. That is simply an indication that a shot was likely fired in that direction. I note that the tiny shadowy figures that can be imperfectly seen in the security video appear to be moving at and just after the time when muzzle flashes can be seen. A figure or figures appear to move to the right in the frame at the time flashes are observed. This would be a move in a southerly or southwesterly direction. Based on those movements and the fact that no bullet strikes or fragments were found on the south side of the internal roadway of the townhouse complex, it appears likely that some shots during the middle of the gunfire were fired by a person or persons who were backing away, moving to the south or southwest as they discharged their firearm or firearms. This would be consistent with the location and distribution of the shell casings. During that shooting a bullet or bullets might have travelled to the east down the internal roadway. I do not see the location of the bullet jacket further to the east as more significant than that.

[162] I have considered the defence submissions on causation. I am unable to accept them. I observe that defence counsel acknowledges that factual causation, as described in Nette, at para. 44, has been established in terms of the shooting causing the death. The focus in terms of proving that Mr. Salah’s death was the result of an unlawful act is, therefore, on legal causation.

[163] I have found that there is no air of reality to the shooter or shooters acting in self-defence. However, I have left open the reasonable possibility that the victim or his brothers fired at the initial aggressors. If they did so, in these circumstances they would almost certainly have been acting in their own self-defence, whether lawful or otherwise. As it would have been reasonably foreseeable to the assailant or assailants who attended to attack Mr. Salah that Mr. Salah or his family might respond violently, I conclude such events could not constitute intervening acts which would disrupt the requirement for legal causation. I will elaborate.

[164] In Nette, at paras. 44-45, the following appears:

44 In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law. Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation.

45 Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished…In determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred. [Citations omitted.]

[165] The defence submission concerning legal causation is that on this record it cannot be ruled out that Mr. Salah or his brothers shot at the person or persons responsible for shooting Mr. Salah. The defence submits that would constitute an intervening act disrupting the requirement that the Crown prove legal causation.

[166] The concept of legal causation in terms of intervening acts breaking the chain of causation was considered in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30. At paras. 25-29, Karakatsanis J. explained that various tests have been developed to determine whether an intervening act interrupts the chain of legal causation, including whether the intervening act was reasonably foreseeable. Karakatsanis J. held that no one test was determinative of this question. At para. 29 she held: “Any assessment of legal causation should maintain focus on whether the accused should be held legally responsible for the consequences of his actions, or whether holding the accused responsible for the death would amount to punishing a moral innocent.”

[167] However, in terms of reasonable foreseeability, Karakatsanis J. held, at para. 30, that if an intervening act is reasonably foreseeable it will not usually break the chain of causation because someone “who undertakes a dangerous act, and in doing so contributes to a death, should bear the risk that other foreseeable acts may intervene and contribute to that death.”

[168] I find this principle to be appliable in this case. I am not able to find that Mr. Salah or his brothers also fired shots. However, it is a reasonable possibility. If they did, in the circumstances as I have found them to be, such a response was objectively and reasonably foreseeable. Such intervening acts would not disrupt the chain of legal causation. Therefore, this possibility is not something which, in these circumstances, raises a reasonable doubt in relation to proof of the essential element I am considering now.

[169] I conclude that it has been proven beyond a reasonable doubt that Mr. Salah’s death was the result of an intentional application of force administered to him without his consent. That is an assault within the meaning of s. 266 of the Criminal Code. Moreover, on the basis of the evidence as a whole I am of the view that the person or persons who shot at Mr. Salah committed murder as defined in s. 229(a)(ii) of the Criminal Code.

[170] I have reached this conclusion without reliance on the intercepted statements of Mr. Al-Ramahi. However, I observe that the accused’s statements are part of the evidence and I am required to consider the evidence as a whole.

[171] I have already reviewed Mr. Al-Ramahi’s statements and I will consider them in more detail in my further analysis below. When they are considered together with the other evidence, they support that the shooter or shooters who fired at Mr. Salah attended for the express purpose of shooting and killing Mr. Salah. The fact that Mr. Al-Ramahi made the statements which he did is one circumstance to be considered together with all the other circumstances when considering what happened at the scene of the shooting and why. In terms of any potential hearsay concerns, I note that the only person whose liability is at stake in this trial is Mr. Al-Ramahi’s. His own statements are admissible to prove facts as against him.

[172] The first essential element is proven beyond a reasonable doubt.

The Second and Third Essential Elements

[173] Proof of the second and third essential elements are both tied to an analysis of the accused’s intercepted statements considered against the backdrop of the other evidence. For that reason, I will consider these essential elements together.

[174] Two distinct questions must be answered. First, has it been proven beyond a reasonable doubt that the accused was a party to the unlawful act that caused death? Second, has it been proven beyond a reasonable doubt that the accused had the mental state required for murder? As discussed above, these questions are posed in the context of whether Mr. Al-Ramahi abetted or counselled the underlying criminal act with the required intent.

[175] I commence with a comment on the nature of the intercepts. I agree that in the intercepts recorded on July 29, 2020 not long after his delivery driver was robbed, Mr. Al-Ramahi was trying to limit himself from having to deal with the situation. He put the onus on Maywand to deal with it. Although he told Maywand to deal with it as a man of the street would, that does not mean that he was suggesting to Maywand or anyone else that Mr. Salah should be killed.

[176] There was an interval of five days until the shooting occurred. During that period there were numerous contacts between Sickspensary and Mr. Salah’s cell phone. While we have no direct evidence of what those communications were about, it is apparent from the first two intercepts that Mr. Al-Ramahi wanted to be compensated for the loss due to the robbery and that he did not want to supply any more “weed” to Mr. Salah until that occurred. He also wanted to find out more details from Maywand about who did what during the robbery.

[177] Given these circumstances I find that the five-day interval, during which there was this ongoing communication, reduces the impact the exculpatory statements made on July 29, 2020 have when it comes to assessing the probative value of Mr. Al-Ramahi’s later statements, which were intercepted after the shooting and after Mr. Salah died.

[178] The fact that the accused’s statements intercepted on August 4 and 6, 2020 were made after the shooting and death does not diminish their value as evidence of what occurred before or of Mr. Al-Ramahi’s involvement. Mr. Al-Ramahi’s after the fact statements include admissions which may be used to prove those factual matters against him. They are also evidence of his state of mind at the time the statements were made and at the earlier points in time he was describing. Apart from factual matters and state of mind, the timing of the statements in relation to the known timeline of events is a circumstance which imbues Mr. Al-Ramahi’s statements with significant probative value.

[179] I recognize that I must consider all the evidence when determining how much to rely upon the accused’s intercepted statements made in the context of Sickspensary’s ongoing illegal operations. The defence submits that Mr. Al-Ramahi may have just been blowing hot air or falsely taking credit for the killing of Mr. Salah after the fact. I have taken this into account. However, I observe that I have no evidence of that and the record does not reveal any other instances where that occurred.

[180] I must take reasonable inferences inconsistent with guilt into account and I recognize that such inferences need not arise from proven facts: Villaroman, at para. 35. However, I must not speculate. To be considered as inferences inconsistent with guilt, those inferences “must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman, at para. 36.

[181] The evidence establishes that Mr. Al-Ramahi had a motive to harm Mr. Salah as he believed that Mr. Salah was involved in robbing his delivery driver. The first two intercepts show that while the accused initially did not want to be directly involved, he felt something needed to be done. He told Maywand to deal with it as a man of the street would deal with it.

[182] It is difficult to assess the strength of the motive with any degree of certainty on an objective basis as many details remain unknown. There is no evidence of Mr. Al-Ramahi threatening to kill Mr. Salah in relation to the robbery. Nonetheless, I am satisfied that the circumstances give rise to the common sense inference that a motive existed. Before the shooting he expressed that something needed to be done. He told Maywand to look after it. In addition, the Sickspensary intercepts show that the accused was proud of his business and did not want himself or his business to be seen as a clown. He wanted he and his business to be taken seriously.

[183] Motive is something which I have considered in a limited fashion as a background circumstance.

[184] Turning to Mr. Al-Ramahi’s statements after the shooting, in my view some of them provide cogent evidence of his involvement in an arranged murder of Mr. Salah. The interrelationship between what Mr. Al-Ramahi said in the homicide intercepts on August 4 and August 6, 2020 and the other established circumstances and known events, combine to add a permeating quality of reliability, enhancing the probative value of the accused’s intercepted statements as evidence of his involvement. At the risk of more repetition, I will elaborate.

[185] On August 4, 2020 Mr. Salah had been shot but was still alive in hospital. On that day Mr. Al-Ramahi said that he did not have to pay at that time because the job was not done. He said, “They don’t want anything right now.” He also said, “I told them if you get the Ah-E you get the money. If there’s no Ah-E no money.” On the totality of the evidence, I conclude that “Ah-E” is a reference to killing Mr. Salah. There is no other reasonable explanation for this conversation in all the circumstances. The inescapable inference is that payment was not required from Mr. Al-Ramahi as of August 4, 2020 because Mr. Salah was still alive. The further inescapable inference is that the accused had promised to pay for the successful killing of Mr. Salah.

[186] There is no direct evidence as to when the accused told “them” what he says he did. However, a consideration of the evidence overall leads me to conclude that it was after the July 29, 2020 intercepts were recorded. There is an inference that prior to July 29, 2020 Mr. Salah was a Sickspensary customer in good standing. The motive did not exist prior to the robbery on July 29. On July 29 Mr. Al-Ramahi wanted Maywand to deal with the situation. As the intercepts on August 4 and 6 show, that subsequently changed, likely during the four to five days of ongoing communication between Mr. Salah’s cell phone and the Sickspensary retail phone line.

[187] Mr. Al-Ramahi then said that he was going to pay “them” anyway out of respect and for their courage, but he added that he would tell them that “next time if the job is not done you won’t get paid.” This is an additional strong indication that Mr. Al-Ramahi had entered an arrangement pursuant to which he promised to pay for the successful killing of Mr. Salah.

[188] Mr. Al-Ramahi then explained to the person he was speaking to that he told “them” that “there’s three brothers six feet tall Somalians any six foot tall Somalian you see (unintelligible) sister (unintelligible) anything Somalian coming out of that house that you (unintelligible) give it.” While I have no evidence that the deceased or his family were Somalian, the deceased lived with his three brothers, his sister and his mother. The deceased was Black and over six feet tall. While what Mr. Al-Ramahi acknowledged he told “them” is not an exact correlation to the victim’s household, it is very close. In addition, I conclude that on a consideration of the whole of the evidence there is a strong inference that by “give it” Mr. Al-Ramahi meant “shoot them”. He was speaking after the fact about having given instructions leading to the shooting of Mr. Salah the previous day. This conclusion gains further support from what Mr. Al-Ramahi said moments later.

[189] Later in the intercepted conversation Mr. Al-Ramahi referred to acts of shooting carried out by others. He did so in a manner which I find tends to link those he is speaking about to the shooting of Mr. Salah. At pp. 5-6 of the August 4, 2020 intercept (Exhibit 6, tab 4), adding in what I hear in the “unintelligibles”, the accused says, “I like fucking little twerps that got that guy the other day.” The unknown male says something which is unintelligible. Mr. Al-Ramahi then said, “They don’t fucking speak they don’t wanna know…they wanna go shoot the guy that’s why I love them.” On a consideration of all the evidence, I conclude this is a reference to the shooting of Mr. Salah and to those who carried out the shooting.

[190] On August 6, 2020, after the unknown male Mr. Al-Ramahi is speaking to mentions that the person who is in hospital in critical condition has died, Mr. Al-Ramahi indicates that he is aware of that and says that is “a better thing”. He then says, “I told them mission complete…”

[191] In terms of both questions under consideration in this section, this is a damning admission. In general parlance a mission is an important assignment or undertaking, often, but not always, given to others to take on. It denotes an objective to be achieved. Here, in the context of what I find on all the evidence was a reference to Mr. Salah dying after being shot, Mr. Al-Ramahi acknowledges that Mr. Salah’s death completed the task or project he had assigned to others. Based on a consideration of all the evidence I am compelled to this as the only reasonable conclusion. Mr. Al-Ramahi’s own words about what he told “them”, that is the people who shot Mr. Salah, prove that there was a connection between his conduct and the murder and that he had the knowledge and intent required. His words constitute an admission that he intentionally solicited, procured and incited those who actually committed the crime, knowing that they intended to kill Mr. Salah in order to receive the payment he had promised them if they succeeded.

[192] That the mission involved shooting, and that death was intended, is reinforced by the accused’s further statements which follow his “mission complete” comment. Mr. Al-Ramahi referred to placing “them” “on call twenty-four seven” and referred to giving them the “heavy machinery”, which I conclude from all of what was said is a reference to heavy or automatic weapons. He also said: “Next time I send them I’m gonna send them with a baby Drako” (underlining added). He referred to giving “them” heavy weapons to use on another person in a manner that would result in dismemberment and death. Regarding this passage, I have assiduously avoided engaging in any bad character or propensity reasoning. I have limited my use of this passage to assigning meaning to the earlier comments I have relied upon.

[193] All this evidence, when considered together, establishes beyond a reasonable doubt that Mr. Al-Ramahi both encouraged and counselled those who shot Mr. Salah to commit murder. It shows that he procured or solicited them and incited them to act as they did. It also shows that he did so knowing that those he encouraged and counselled intended to cause Mr. Salah’s death. That was the mission that only became complete with the death of Mr. Salah.

[194] I am of the view that the second and third essential elements of the offence charged have also been proven beyond a reasonable doubt. Accordingly, Mr. Al-Ramahi is guilty of at least second degree murder in relation to the death of Abdifatah Salah.

Is the murder First Degree Murder?

[195] Based on my analysis in the last section, I am also satisfied beyond a reasonable doubt that the accused is guilty of first degree murder because the murder was an arranged murder within the meaning of s. 231(3) of the Criminal Code. It is, therefore, deemed to be a planned and deliberate murder constituting first degree murder pursuant to s. 231(2) of the Criminal Code

[196] The evidence establishes that Mr. Al-Ramahi entered an arrangement to pay others to have Mr. Salah shot and killed. Based on Mr. Al-Ramahi’s own statements, he was not obligated to pay immediately after the shooting because Mr. Salah initially survived the shooting. However, he decided to pay anyways, out of respect for the courage exhibited. But he said he told “them” that next time they would not be paid if the job was not done. When Mr. Salah subsequently died Mr. Al-Ramahi said the mission was complete.

[197] Considering the evidence in its entirety, I find that the only reasonable conclusion I can come to is that the accused is responsible for arranging and paying for the murder of Mr. Salah. This inescapably flows from Mr. Al-Ramahi’s own statements as described in my earlier analysis.

[198] I am also satisfied beyond a reasonable doubt that the arrangement was in place prior to the shooting and that there was a promise to pay after the job was done. On August 4, 2020 Mr. Al-Ramahi described to the person he was speaking with how he told “them” to “give it” to any Somalian coming out of the house. That was Mr. Al-Ramahi describing after the fact the instructions he gave before the shooting. There is no other reasonable interpretation. Mr. Al-Ramahi also said he told those he was engaging with: “If you get the Ah-E you get the money, if there’s no Ah-E no money…” This also shows that the arrangement was put in place prior to Mr. Salah being shot.

Conclusion

[199] Mahmoud Al-Ramahi is found guilty of first degree murder in relation to the death of Abdifatah Salah. A conviction is registered accordingly.

F. Dawson J.

Released: April 8, 2024

COURT FILE NO.: CR-22-406-00

DATE: 2024 04 08

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Crown

and -

MAHMOUD AL-RAMAHI

Defence

REASONS FOR JUDGMENT

F. Dawson J.

Released: April 8, 2024

[^1]: Pare makes reference to the previous section numbers, ss. 212 and 214, which have become ss. 229 and 231 of the Criminal Code respectively.

R. v. Al-Ramahi, 2024 ONSC 1772

Case Summary

F. DAWSON J.

Overview

The Evidence in More Detail

The Robbery of the Delivery Driver

The Shooting

The Police Investigation of the Scene

The Remaining Homicide Intercepts

Tab 3 - August 4, 2020

Tab 4 - August 4, 2020

Tab 5 - August 4, 2020

Tab 6 - August 6, 2020

Tab 7 - September 29, 2020

The Sickspensary Intercepts

Applicable Legal Principles

Analysis

The First Essential Element: Was Mr. Salah’s death caused by an unlawful act?

The Second and Third Essential Elements

Is the murder First Degree Murder?

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 4

Legislation 1