R. v. Bailey, 2016 ONCJ 450

WARNING The court hearing this matter directs that the following notice 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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (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. CITATION: R. v. Bailey , 2016 ONCJ 450 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — AKEEM BAILEY Before Justice Sandra Bacchus Heard: May 30, 31 and June 2, 2016; Ruling On Committal for Trial J. Callaghan............................................................................. for the Crown A. Hershkovitz..................................................................... for the defendant Bacchus J.: Overview 1 .

The defendant is charged with five counts of Attempt murder and a number of gun related offenses in relation to an incident that occurred on April 16, 2015. 2 . The defendant contests committal to stand trial on the five counts of Attempt Murder submitting that there is no evidence from

which a reasonable inference arises that he attempted to kill these victims or was even aware of the plan to shoot them. Background 3. On April 16, 2015, five people were shot at close range while sitting outside a residence at 404 Driftwood Avenue Unit 3. Thevictims sustained serious injuries from ‘through and through’ gunshot wounds. One of the victims who had sustained multiple gunshotwounds was vital signs absent on the way to the hospital. Fortunately emergency personnel were successful in their effort to resuscitatehim. 4.

Another victim had just given her 11 month old baby to someone else to hold when she was struck by a bullet. A bullet alsotravelled through a baby stroller, which fortunately was unoccupied at the time. (Exhibit 1) 5. Video surveillance taken from the Driftwood community centre next to the residence where these individuals were gunned down,recorded images of a car pulling into the parking lot next to the town house complex and three men exiting the vehicle and thenambushing the victims who were outside the residence. (Exhibit 5) 6.

The video surveillance then captures the three shooters immediately getting back on board the waiting vehicle and the vehicleleaving the scene. 7. The shooting and actions of this vehicle immediately came to the attention of undercover mobile surveillance officers who happenedto be in the area involved in another investigation. These undercover officers followed the vehicle, a black Hyundai licensed BVRA 971,with its four occupants, until eventually boxing it in on a residential street in front of 124 and 126 Elmhurst Avenue in Etobicoke. 8.

Video surveillance at the Elmhurst residence captured images of three of the parties fleeing the vehicle as well as recording someportion of their capture by the police on the property. 9. The driver, identified as the defendant before the court, was detained and arrested by the police while he remained seated in thedriver’s seat of the black Hyundai. TEST FOR COMMITTAL 10. The test for committal requires that where there is direct evidence adduced on all elements of an offense the case must go to trialeven if a defense exists on the evidence. R. v. Sheppard (1977), (SCC), 2 S.C.R. 1067 11.

In the instance of circumstantial evidence, the preliminary hearing judge may engage in a limited weighing of the evidence. This weighing of evidence does not apply to issues of credibility that remain the exclusive purview of a jury. If conflicts arise of atestamentary nature, they should be left to be resolved by the jury. R. v. Arcuri (2001) 2001 SCC 54 , S.C.J. No. 52 (S.C.C.) 12. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does sheassess credibility.

Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for aproperly instructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of theevidence itself. It should be regarded instead, as an assessment of the reasonableness of the inferences to be drawn from thecircumstantial evidence. (R. v. Arcuri, supra, para. 30) 13.

It is well established that where reasonable inferences capable of supporting the crown’s theory are available on the evidence,whether direct, circumstantial or a combination of both, the case must be left to the trier of fact to consider that evidence. It is not for thiscourt to engage in assessing the quality and reliability of the evidence or any possible defense. The crown’s case is to be taken at itshighest at the preliminary inquiry stage. R. v. Charemski, (1998) 123 C.C.C. (3d) 255 S.C.C.; R. v. Sazant (2004) 208 C.C.C. (3d) 224(S.C.C.). 14.

The offense of attempt murder is a specific intent offense and evidence of a specific intent to kill on the defendant’s

part is anessential element of the offense. R v Ancio (1984) (SCC), 1 S.C.R. 225 15. An aider or abettor commits attempted murder if she or he knows of the principal’s intention to kill and intends to help orencourage the principal. R v Fatima

(2006) O.J. No. 1495 para. 59 16. While a party to an offence need not necessarily have knowledge of the details of the specific crime, he or she musthave some knowledge of the essential nature of the offence to be committed by the principal. Thus, evidence which only amounts toknowledge of an intention to commit

an act of violence is not sufficient to commit the defendant to stand trial on the counts of attemptmurder. R v Ahmad[2015]O.J. No. 1879 17. In addition, evidence from which arises an inference that death would have been objectively foreseeable in a particular set ofcircumstances, such as the case of a home invasion robbery which goes awry and results in near death or serious injury, is not sufficientto inculpate a party to the offense of attempt murder. R v Adams (ON CA), [1989] O.J. No. 747; Ahmad, supra 18.

On the other hand evidence from which a reasonable inference arises of concerted or pre-concerted action consistent with aspecific intent to kill is sufficient to ground committal for trial on a count of attempt murder. R v Fatima

(2006) O.J. No. 1495 para. 57

ANALYSIS 19 . In this case there is ample evidence that the three individuals who left the defendant’s vehicle and shot the five victims outside of 404 Driftwood avenue Unit 3, had a specific intent to kill those victims. 20 . The three shooters came to the scene as a group having already acquired guns and ammunition in advance. They exited the vehicle as a group and unloaded their weapons at the victims as a group. The shooters fired 22 times at a group of unarmed civilians at close range emptying their magazine clips at the victims.

They then re-entered the waiting vehicle, driven by the defendant, as a group and fled the scene as a group. (Exhibit 4) 21 . Although there is no direct evidence that they knew the victims or that there was a history of animus between any of the shooters and the victims there is an overwhelmingly clear and reasonable inference that that residence and those victims were targeted. 22 . The overwhelming evidence in this case is that the shooters were engaged in executing a plan to kill these victims in a cold and calculated manner and that this was a targeted, execution style shooting with an intent to kill. 23 .

This case is completely distinguishable from circumstances such as a random shooting at passing vehicles or shooting into a crowded club where other courts have found it unreasonable to impute a specific intent to kill. R. v. Chanthalangsy, [2002] M.J. No. 465 (Man. Prov. Ct.) ; R. v. Chartrand, [1989] M.J. No. 464 (Man. C.A.) ; R v. Whittaker

(2007) ONCJ 14 24 . In this case, like his co-accused, there is no evidence that the defendant himself knew the victims or had any motive to kill or harm them or held any animus towards them consistent with an antecedent state of mind. 25 . Further, there is no evidence that the defendant exited the motor vehicle and specifically encouraged or abetted the shooting by his immediate presence at the scene in front of the residence. 26 .

I do find, however, that there is evidence from which arises a reasonable inference that the defendant aided and abetted the acts of the shooters consistent with his knowledge and participation in a plan to kill the victims 27 .

That evidence is as follows: - the defendant brought the shooters as a group in a vehicle he was driving to a position close to the residence; - the defendant after dropping off the three assailants immediately put his car in reverse and re-positioned his vehicle in a manner that allowed the shooters to easily re embark after they finished executing their plan and make a fast getaway; - there is a reasonable inference that the defendant knew what transpired at the residence given his proximity to the shooting, the number of shots fired and that there is evidence that undercover officers in the area heard the shots and saw people running with panic; - that knowing what transpired the defendant willingly allowed the shooters to get back in the vehicle, giving rise to a reasonable inference of the defendant’s knowledge and consent of their conduct; - that there is some evidence from which a reasonable inference arises that the defendant when he allowed the shooters to re-embark showed no hesitation or apprehension in the manner he operated the motor vehicle and fled the scene;

- that the defendant in fleeing the scene engaged in extensive evasive manoeuvres to avoid detection; - that during the flight of the vehicle two of the occupants in the Hyundai driven by the defendant were observed by Officer Rick Franklin to be pointing and laughing at a York Regional marked police cruiser that was travelling in the other direction from which an inference arises that the vehicles’ occupants were light hearted and satisfied that they had successfully evaded or avoided police detection. 28 .

Further, there is evidence of the defendant’s post offense actions at the scene of the arrest which also supports a reasonable inference consistent with the defendant’s knowledge and participation in the plan to kill. 29 . Officer Franklin testified that when the Hyundai was stopped in front of the Elmhurst residence he observed the defendant attempting to get out of the motor vehicle but that the defendant was held back by his seat belt.

This evidence is consistent with a reasonable inference that the defendant wanted to further flee the vehicle like his co-horts, knowing what they had just done in attempting to kill the victims. 30 . In addition Officer Franklin testified that while he was standing at the police cruiser behind the defendant’s vehicle trying to radio dispatch for help and while the defendant was still seated in the driver’s seat of the vehicle, he heard metal hit the pavement. 31 .

Subsequently a Norinco Automatic Colt Pistol was located outside the passenger side door of the defendant’s vehicle; the slide was locked to the rear, the magazine, which had a capacity for seven rounds, was empty, and the serial number scratched and defaced. (Exhibit 1) 32 . Discharged ammunition and casings located at the scene of the Driftwood shooting identified this gun as one of the weapons used at the scene. (Exhibit 4) 33 . When Officer Franklin heard the metal sound hit the pavement the other three assailants were away from the Hyundai and no one else was close to the vehicle. 34 .

There is therefore a reasonable inference that arises from the circumstantial evidence that while Officer Franklin was momentarily distracted at his police cruiser trying to call this matter into dispatch, the defendant threw this gun out of the passenger side of the vehicle to avoid being implicated in the shootings. 35 .

The totality of the evidence in relation to the defendant’s offense related and post offense related actions leads to a compelling reasonable inference that the defendant knew of the plan to kill the victims and was complicit in participating in the execution of the plan as a party to the offense. 36 . There are other competing inferences which arise regarding the level of the defendant’s participation and the characterization of his post offense conduct. These inferences are not to be weighed by me but must be left to the trier of fact. Charmeski, supra 37 .

The defendant will be committed to stand trial on the five counts of Attempt murder as well as the other counts on the information which he does not contest. July 21, 2016 ______________________________ Signed: “Justice Sandra Bacchus”