R. v. Kassim et al., 2011 ONCJ 453

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code . This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows: 539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (

a) may, if application therefor is made by the prosecutor, and (

b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (

c) he or she is discharged, or (

d) if he or she is ordered to stand trial, the trial is ended. . . .

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Toronto Region Metro North Court DATE: 2011·04·27 Citation: R. v.

Kassim et al. , 2011 ONCJ 453 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ARRAF KASSIM, ROHAN SHIWSHANKAR, NAPOLEON ROCHESTER, ANTHONY NELSON AND YOVIDRA SHIWSHANKAR Before Justice Carol Brewer Heard on February 14-18, 22-23, 28, March 1-2, 7, 11 and 15, 2011 Reasons for Judgment released on April 27, 2011 Patrick Clement and Brett Cohen .............................................................................. for the Crown Sam Goldstein ............................................................................... for the defendant, Arraf Kassim Gordon Cudjoe .................................................................... for the defendant, Rohan Shiwshankar Mitchell Chernovsky ............................................................ for the defendant, Napoleon Rochester Liam O’Connor ......................................................................... for the defendant, Anthony Nelson Alison Craig ...................................................................... for the defendant, Yovidra Shiwshankar

Brewer J.: Introduction [ 1 ] This is a ruling on the issue of committal for trial following a preliminary inquiry. Arraf Kassim, Rohan Shiwshankar and Napoleon Rochester are charged with first degree murder; and Anthony Nelson and Yovidra Shiwshankar are charged with manslaughter in the death of Andre Daley on October 18, 2009.

All of the defendants are also charged with attempting to murder Ayam Youssif, Ethan Shanks and Evan Rodgers while using a firearm. [ 2 ] At the conclusion of the preliminary inquiry, Crown counsel sought to have each of the defendants committed for trial on the following charges: • first degree murder of Andre Daley; • attempted murder of Ayam Youssif while using a firearm; and • aggravated assault on Evan Rodgers. [ 3 ] These charges arise out of a shoot-out in the parking lot of a strip mall at 3585 Keele Street.

The shooting occurred at about 3:04 a.m. as the First Choice Restaurant was closing and patrons of the bar were leaving the premises. The Evidence [ 4 ] At 12:11 a.m. on October 18, 2009 the five defendants and Michael Seenarine arrived outside of the First Choice Restaurant. They entered the vestibule and were searched by security guards before entering the bar. Immediately behind the defendants in the line to enter were Andre Daley, Ayam Youssif and Ethan Shanks.

Daley was also accompanied by two other males, one of whom wore a dark jacket with the word “Crooks” on the back in white letters (Crooks), and the other wearing a yellow jacket with leopard spots on it (YJ). There is no indication that either group of men was acquainted with the other. [ 5 ] After Crooks and YJ were searched, they entered the bar. Daley tried to push further into the vestibule and was blocked by Karen Buchanan. Shanks was searched and entered the club. When Daley was searched by Latina McLean, she felt a hard object at the back of his waist that she believed to be a gun.

Daley was excluded from the bar and his companions, including those who had already entered the premises, departed with him. [ 6 ] The Daley group went around a corner outside of the bar. They appeared to be having a discussion. Six minutes after being excluded, Daley returned to First Choice, alone. He was searched by Karen Buchanan, the more senior security guard. After no weapon was found, Daley entered the bar.

His friends returned to the club approximately three minutes later. [ 7 ] At 2:01 a.m., Ralston Rattray, Leighton Reid, Evan Rodgers and Nina Garner went through security and entered First Choice. [ 8 ] Rattray and Reid went to the washroom as soon as they arrived in the bar. According to Rattray, the washroom is a place to meet friends, “accumulate funds” to buy a bottle and arrange a place to stand in the bar. Rattray and Reid encountered Daley, Youssif and their companions in the washroom. Youssif was being “mischievous” and teasing another man in the washroom about the chain he was wearing.

Youssif was “disrespecting the guy”. Rattray testified that the man being “disrespected” did not appear to take offence. However, Rattray acknowledged that he felt “uncomfortable” and offended by Youssif’s conduct. Indeed, immediately after this incident, Rattray said that he left the bar and stayed in his van for 5 minutes before rejoining his friends. [ 9 ] At 2:16 a.m. all of the defendants and Seenarine began exiting from the bar. Rochester was the first of the group to leave.

Between 2:19 and 2:48 a.m. there was an intense period of cellular telephone communication between certain members of the group: 19 calls were made between Nelson and Rochester; [1] five calls between Kassim [2] and Rochester. [ 10 ] At 2:29 a.m., Rohan Shiwshankar’s Infiniti sedan, driven by his brother, Yovidra, moved to the northwest corner of the parking lot encircling the strip mall and backed into a parking space. Five minutes later, the Infiniti pulled out of the parking spot and drove south on the west side of the plaza. At 2:45 a.m. Rochester parked his Camry on the north side of the parking lot.

Three minutes later, Nelson parked his vehicle on the same side of the plaza. At 2:50 a.m., Kassim and Rohan walked along the parking lot towards Rochester’s Camry and met Nelson and Rochester there. A minute later, Yovidra drove back to the north end of the lot and stopped close to where the Camry was parked. There appeared to be a conversation between Yovidra, Rochester and Kassim in Rohan’s presence, before the Infiniti moved off to the east, along the north side of the parking lot. Kassim and Rochester stayed in that location.

At 2:52 a.m., the Infiniti drove west along the north side of the plaza, on the way to where Kassim and Rochester were waiting. Rohan moved to the sidewalk at the northwest corner of the strip mall – a position from which one could see the entrance to First Choice. When the Infiniti stopped, Nelson stood at the front of the car, as if keeping watch. Kassim and Rochester went to the trunk of the vehicle. Rochester took Kassim’s sawed-off shotgun from the trunk of the Infiniti. The gun was placed in Rochester’s left sleeve. [ 11 ] At 2:54 a.m. Kassim and Rochester went to the sidewalk where Rohan was standing.

The three men walked south towards the bar, followed by Nelson. Between 2:55 and 2:59 a.m. Rohan and Kassim stood outside the entrance to First Choice and, at times, appeared to be looking inside the club. Rochester walked back north along the sidewalk at 2:59 a.m. in the direction of his Camry. At this time the shotgun was concealed in the right sleeve of his jacket. Nelson followed behind Rochester. [ 12 ] At 3:00 a.m. Kassim and Rohan returned to the Infiniti, which Yovidra had driven around the lot and stopped at the north end of the plaza.

They went to the rear of the vehicle, where Kassim lifted the open lid of the trunk and then lowered the lid without closing it. Rochester got into the driver’s seat of his Camry. One minute later, the Daley group exited the bar. Rochester pulled his car

out of its parking space. Nelson got into the front passenger seat of the Camry, while Rohan and Kassim entered the back seat. The Infiniti was driven to the front of the strip mall, where it left the plaza. Rochester drove the Camry east, towards the back of the strip mall. [ 13 ] At 3:02 a.m. Rodgers, Rattray and Reid left the bar. Nina Garner was already outside, smoking a cigarette. As Rattray got outside, he was approached by Daley, who asked if he and his companions could have a ride home.

Rattray agreed, since he was friends with Daley and was intending to take Rodgers to the same area. [ 14 ] An unknown vehicle, visible only as a set of headlights, pulled up from the south to the area outside of the bar. The silhouette of a person can be seen walking by the vehicle at 3:03 a.m. A second person’s outline appeared beside the car a short time later. [ 15 ] Rattray and Reid went to the Rattray’s van following Daley’s request for a ride. Just after Reid arrived at the passenger side of the van, he heard an argument. Rodgers also heard an argument as he began walking to the van.

Youssif and Daley were standing about six feet away from the van, with Youssif’s arm around Daley’s shoulders. Close to the two men was Anthony Nelson. Youssif was exchanging insults with Nelson. Since Reid knew both Nelson and Daley, he “tried to calm things down”. When Reid believed the dispute had been settled, he turned back to the van. At that time the first shot was fired. Nina Garner heard the shot from where she was sitting in the front passenger seat. She saw Rodgers approaching the van and got out of the vehicle to open the side door for him.

A bullet struck the interior of the open front passenger door, causing the window to shatter. Garner helped Rodgers, who had been shot, into the van. [ 16 ] Rattray testified that he saw the shooter: a black man, all dressed in black, in the shadows, at a distance of 20 to 30 feet away. Garner described seeing a black man crouched down on one knee and shooting in a southward direction. [ 17 ] Reid ran across the street right after the shooting began and, eventually, took a taxi home. Rattray drove away while the shooting continued and dropped Rodgers and Garner off at the hospital.

Rodgers suffered four gunshot wounds to his left buttock and two wounds to his left calf. His left fibula was broken. Youssif was shot seven or eight times. He collapsed on the sidewalk outside of the bar, but later made his way into the vestibule. Shanks was struck by a bullet on his right stomach, which exited by his left hip. Nelson was shot in the foot. He removed his boot and limped north to his car.

Daley was shot four times: one bullet struck his left lower face then penetrated to the right side of his neck; another hit the bottom of his right foot, exited the top of his foot, entered his lower leg and traveled up to his groin; a third entered his mid-back and perforated his left abdomen; and a fourth bullet struck his back right flank and penetrated his left upper abdomen. [ 18 ] The numerous cartridge casings and projectiles from the shooting were located in two clusters, one group about 27 feet north of the other.

Thirty-five items, consisting of projectiles and cartridge cases, were submitted to the Centre of Forensic Sciences. The northern cluster of cartridge cases came from a Glock 9 mm handgun, which was found with an empty magazine in a field south of the strip mall. A 9 mm Browning Hi-Power pistol, which was subsequently recovered in Windsor, was linked to bullets that struck Daley and Youssif, as well as the southern cluster of cartridge cases. [ 19 ] Rattray’s van was parked facing north, in a position perpendicular to the marked parking spaces in the lot.

A number of witnesses indicated that the van was parked south of the bar, near the southern collection of cartridge cases. However, Rattray situated the van opposite the bar near the northern group of cartridge cases. Garner’s account of seeing a man at the rear of the van shooting south supports Rattray’s location of the van. In addition, window glass was found on top of the northern cases. [ 20 ] Security guard Hyung Chan drove past the plaza and heard between 10 and 20 gunshots. He made a u-turn and pulled into the parking lot, partially blocking the entrance. Mr.

Chan arranged for police and emergency services to be contacted through his dispatcher. He saw people running from the scene and cars lined up to leave the parking lot. Mr. Chan was at the side of Andre Daley within about 90 seconds of first hearing the gunshots. Police arrived at the scene within three to four minutes of Chan’s call to his dispatcher. The parking lot was locked down as a crime scene and vehicles, including that of Mr. Chan, were not permitted to leave. [ 21 ] Rochester’s Camry was located, abandoned, in the southeast corner of the parking lot.

There was a bullet just above the licence plate of the vehicle. The sawed-off shotgun was found under the front driver’s seat. The weapon was loaded. No shotgun cartridge cases were found at the scene. [ 22 ] In a statement to the police, Kassim admitted leaving Rochester’s car and fleeing through a gap in the fence at the south of the plaza parking lot. He ran through a fence and called Yovidra to be picked up. Telephone records show a call from Kassim’s phone to Rohan’s phone at 3:13 a.m.

The Test To Be Applied [ 23 ] As a judge presiding at a preliminary inquiry, my role is to ensure that there is sufficient evidence to commit the defendants for trial. Accordingly, I must determine, in relation to each of these charges, whether there is some evidence upon which a reasonable jury, properly instructed, could convict: U.S.A. v. Sheppard , [1976] S.C.J. № 106. In carrying out this task, I am not entitled to draw factual inferences or to assess the credibility or reliability of the evidence.

In addition, where the case involves circumstantial evidence, I am only entitled to assess the reasonableness of the inferences to be drawn and determine whether the evidence, if believed, could support an inference of guilt: R. v. Arcuri , [2001] S.C.J. № 52. Any reasonably available

interpretation of, or inference from, the evidence at the preliminary inquiry must be resolved in favour of the prosecution: R. v. Sazant , [2004] S.C.J. № 74 at ¶18. The Position of the Crown [ 24 ] Mr. Clement submits that the defendants engaged in a joint enterprise in which they planned to kill Ayam Youssif and, in carrying out that goal, wounded Youssif and Evan Rodgers, [3] and killed Andre Daley. The genesis of this plan was Youssif’s confrontation with Rochester in the washroom at First Choice. Immediately following that incident, the defendants left the bar and

began preparations for an ambush of Youssif and his friends. Rochester drove to his home, [4] while staying in constant contact with the other defendants on the phone. After Rochester returned to the parking lot of the bar, the group gathered by the Camry. Yovidra pulled up in the Infiniti and spoke with them before circling the parking lot. After Rohan and Nelson took positions as look-outs, Yovidra returned and delivered the shotgun to Kassim and Rochester. Rohan, Kassim and Rochester walked toward the club, where Kassim and Rohan monitored the front of the bar for the Daley group.

Rochester, Nelson, Kassim and Rohan then got into Rochester’s Camry. Yovidra left the plaza in Rohan’s car. The four remaining defendants circled the back portion of the parking lot in the Camry and took up a position just south of the bar, as indicated by the headlights on the surveillance video. Nelson got out of the Camry and initiated a confrontation with Youssif.

The shooting started shortly after the confrontation began. [ 25 ] In essence, it is the Crown’s position that it would defy coincidence if someone, other than the group of men who were preparing to ambush Youssif and his friends with a gun, opened fire on the focus of their animosity, thereby shooting three members of the Daley group and Rodgers, a bystander. [5] Analysis [ 26 ] Although many of the actions of the various people involved in this incident are shown by the numerous surveillance cameras at the plaza, the shooting itself is not visible.

The crucial portion of the prosecution’s case on all of these charges is founded on inferences that counsel suggests are available on the evidence I have heard. [ 27 ] When dealing with a case involving circumstantial evidence, a judge presiding at a preliminary hearing is to engage in a “limited weighing” of the evidence to assess the reasonableness of any inferences that may be drawn from the evidence: R. v. Arcuri, supra at ¶23. An inference is a factual deduction that can reasonably and logically be drawn from a fact or group of facts established by the evidence: R. v.

Morrissey , [1995] O.J. № 639 (C.A.) at ¶52. In order for an inference to be legitimately drawn, it must be both reasonably based on the evidence and a reasonable conclusion from those proven facts: R. v. Munoz , [2006] O.J. № 446 (S.C.

J) at ¶22- 31. As the Court of Appeal cautioned in United States of America v. Huynh , [2005] O.J. № 4074 at ¶7: “The process of drawing inferences from evidence is not, however, the same as speculating, even where the circumstances permit an educated guess.” [ 28 ] In my opinion, there is a fundamental flaw in the Crown’s analysis of what inferences a jury could properly draw from this evidence.

I accept that a reasonable trier of fact could find that the defendants had entered into a joint venture to ambush Youssif and his friends with a gun. [6] Similarly, the route taken by Rochester’s car in leaving the north end of the parking lot with his three co- defendants, together with Nelson’s presence in an area near the bar in order to confront Youssif and the bullet hole in the Camry support an inference that Rochester’s car was the vehicle visible by its headlights that pulled up from the south just before the shooting.

However, there is no evidence connecting any of the defendants present at the plaza at the time of the shooting to either the Glock or the Browning pistols. This absence takes on heightened significance when considered with the fact that the only firearm that was connected with the defendants was not used. I recognize that handguns are easy to conceal.

Nonetheless, I believe that it would be conjecture to conclude from these facts that Napoleon Rochester, Arraf Kassim or Rohan Shiwshankar fired the Browning pistol that killed Daley or that the other defendants were aware of a handgun and its intended use. [ 29 ] Given the absence of any evidence upon which a reasonable jury properly instructed could find that any of the defendants were participants in these offences, they are discharged on all counts. Released: April 27, 2011 Signed: “Justice Carol Brewer”