r v. SHAMORA ROBERTSON, 2017 QCCQ 10274

R. c. Robertson 2017 QCCQ 10274 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N° : 500-01-141126-166 DATE : September 6, 2017 ____________________________________________________________________ BEFORE THE HONOURABLE JUSTICE DANIEL BÉDARD, J.C.Q. ____________________________________________________________________ THE QUEEN Prosecutor v.

SHAMORA ROBERTSON and NIKITA HUNT and JERMAINE GERO Accused ____________________________________________________________________ JUDGEMENT ____________________________________________________________________ INTRODUCTION [ 1 ] The Prosecution seeks a committal to stand trial for Shamora Robertson, Nikita Hunt and Jermaine Gero on the following charges: “1-On or about April 30, 2016, in Montreal, district of Montreal, did cause the death of Gilbert Nshimiyumukiza, committing thereby a first degree murder, the indictable offence provided by

section 235 of the Criminal Code . 2- On or about April 30, 2016, in Montreal, district of Montreal, in committing an assault on Bryan Ince, did carry, use, threaten to use a weapon, committing thereby the indictable offence provided by

section 267a) of the Criminal Code . 3.

Between April 30, 2016 and July 13, 2016, in Montreal, district of Montreal, did possess a prohibited weapon, to wit: a revolver Iver Jonson .32 caliber Knowing that they are not the holder of a licence under which they may possess it, committing thereby the indictable offence provided by section 92(2) (3) of the Criminal Code . 4- Between April 30, 2016, and July 13, 2016, in Montreal, district of Montreal, did possess a loaded prohibited firearm without being the holder of an authorization or a licence under which they may possess it and the registration certificate for the firearm, committing thereby the indictable offence provided by section 95(2) of the Criminal Code . [ 2 ] There is a warrant issued for the arrest of Shamora Robertson whereas Nikita Hunt and Jermaine Gero are detained.

FACTUAL BACKGROUND [ 3 ] On April 30, 2016, a few minutes after one o’clock in the morning, Gilbert Nshimiyumukiza is in his semi-basement apartment located at 11960, rue Grenet, app. 103, in Montreal. His roommate, Bryan Ince is also present. [ 4 ] Somebody knocks on the door, Gilbert opens the door and a few words are said or exchanged. Three individuals come in, one of them pointing a firearm at Gilbert, motioning him to step back and sit on the nearby sofa, where his roommate is waking up upon hearing voices. A fourth individual comes in. A very brief exchange takes place.

Three of the individuals face Gilbert and the fourth one, who wears gloves and has the revolver shoots Gilbert in the head, standing at the end of the sofa where Gilbert is sitting. On his side, contrary to the others. [ 5 ] They all leave by the living room window, located on the side of the sofa where Brian Ince is sitting. [ 6 ] On July 13, 2016, more specifically seventy-three days after the incident, Nikita Hunt is arrested. A revolver and a bandana are

found in his packsack. ISSUES TO RESOLVE [ 7 ] Concerning the accused Nikita Hunt, the evidence tendered by the Crown is, as for counts 1 and 2, circumstantial on the identification, the actus reus and the mens rea and direct on counts 3 and 4 for all the essential elements. [ 8 ] Concerning Jermaine Gero the evidence is, as for counts 1 and 2, direct on identification and actus reus , but circumstantial on the mens rea for count 1.

The evidence is direct on all essential elements as for counts 3 and 4. [ 9 ] Consequently the issue to be resolved is whether the circumstantial evidence tendered on some essential elements of the offences, reasonably support the inferences the Prosecution wants the jury to adopt or draw to render a verdict of guilt. EVIDENCE [ 10 ] Bryan Ince is the only eyewitness and his testimony is analysed later in this section.

Numerous written admissions are filed at the beginning of the hearing, namely in relation with chains of possession of many items, qualifications of the experts, for some of them filing of their reports as representing their testimony and contents of the videos as representing the events as they occurred. [ 11 ] More specifically and for the purpose of the analysis, the admissions and the contents of the various reports establish the following facts: - Gilbert Nshimiyumukiza, born on [...], 1985, is the victim; - On April 30, 2016, he is shot in the head and dies the following day from the injury caused by the gunshot; - On July 13, 2016, the accused Nikita Hunt is arrested and in his packsack, there is a revolver Iver Johnson .32 caliber, Safety Hammer Automatic Model 3, serial number JI2646.

The five barrel revolver contains four bullets; - A ballistic expertise (EP-23), done by Erik Hudon, specialist in forensic ballistic, confirms that the bullet removed from the victim was shot with the revolver found in the packsack of Nikita Hunt; - A set of cameras located in the building of the victim, at 11960, rue Grenet shows three individuals walking in the hallway towards the apartment of the victim. All three of them have hoodies on their head and one of them is wearing yellow gloves. A minute or two after, a fourth individual comes in the hallway towards the apartment and he is wearing a blue jacket.

The cameras outside the building show the individuals exiting near the living room window of the victim, besides which a mattress, wood panels and furniture have been left. The hours, when adjusted to real time (EP-15) establish that the individuals enter at 1:02 am and exit at 1:07.

No identification is possible. (EP-15); - Another set of cameras outside the building 11905, rue Dulongpré, shows an individual getting rid of something by dropping it in one of the recycling bins located near the building. (EP-15); - To summarize the evidence tendered with the camera, at 01:02 hour, we see three individuals in the hallway with their hoodies on their head and the yellow gloves that one man is wearing. At 1:04:56, we see the fourth individual with a blue jacket in the hallway walking towards the apartment.

At 01:05:36, we see the individuals leaving, they are near the living room window and the last one tripping over the items beside the window; - The forensic biology report written by Sonia Roy, expert (EP-30 and EP-31), confirms the presence of DNA corresponding to the profile of Jermaine Gero, on the piece of the yellow glove found on the fence beside the 11960, rue Grenet building.

The same DNA profile is found on the left yellow glove, left in the garbage bin beside building 11905, rue Dulongpré. (EP-5, photos 245 to 248 for the piece of glove on the fence and photos 350 to 356); - The piece of yellow glove found on the fence, matches with the yellow glove found in the garbage bin, more precisely, the piece of glove found on the fence is part of the left hand glove found in the recycling bin. (EP-18); - The DNA profile on the bandana seized in the packsack of Nikita Hunt on July 13, 2016, matches the DNA profile of Jermaine Gero; - The palm print found on the ledge of the living room window of the victim’s apartment, corresponds to the left palm print of Nikita Hunt (EP-8 and EP-9); - Documents EP-31 to EP-36, confirm 15 telephone communications including SMS messages, between the Blackberry telephone (514 [...], see EP-1), seized on Nikita Hunt on July 13, 2016 and the phone number (438 [...]) of Jermaine Gero, between April 29, 2016 at 14:58:17 and April 30, 2016 at 22:01:16.

The documents also establish the locations of some communications in the vicinity of the 11960, rue Grenet; - All parties agree on the various sketches filed in evidence as a true representation of what is drawn; [ 12 ] To the above must be added the testimony of the eyewitness, Bryan Ince. [ 13 ] Born on [...], 1985, Bryan Ince is, on [...], 2016, a friend of the victim since five or six years. Initially they meet in a park, drink and smoke together, “chilling off”, as the witness say.

[ 14 ] At the time of the incident, they are roommates, sharing a 3 1\2 apartment at 11960, rue Grenet, app.103, since two months. The victim Gilbert, receives welfare, works in a carwash and also does tree cutting. They buy their drug from a guy nicknamed “the Dread”, after contacting a girl. They do buy marijuana two or three times a week from the Dread. The Dread is a black person like him and Gilbert.

Before the shooting, the meetings with the Dread to buy drugs is in place since a month and a half. [ 15 ] Prior to the shooting, maybe two or three weeks before, he goes out with Gilbert to see the Dread because there has been an incident between the Dread and Gilbert, incident in which Gilbert was shaken and intimidated by the Dread. So the witness goes to the apartment of the two white girls, where the Dread sometimes live. Usually, the girls sell him the drugs. The witness wants to know why the Dread intimidated his friend Gilbert.

Ince decides not to buy drugs from the girls, in the future. [ 16 ] On the morning of April 30, Ince goes out to buy food and cleaning products for the apartment. [ 17 ] Afterwards, some friends come to the apartment “to chill”. They arrive between 17:00 and 19:00 hours and leave around 21:00 hours. When they leave, Ince falls asleep on the couch and Gilbert watches television. [ 18 ] At one point he wakes up, hears Gilbert and the Dread talking and hears ‘Where is my money?”. While waking up, he hears footsteps coming closer to him. He raises his head and sits straight on the sofa.

He sees a man pushing Gilbert with a gun. There are three black men. The Dread is behind the guy with the gun and there is a third man entering. He only knows the Dread. [ 19 ] He will never forget the man with the gun. He has a spot on the forehead and a deep voice. The man has brown skin like him, in his late twenties or early thirties. The tallest of the three. They are all wearing dark clothes and the fourth man that comes in is big and wears a blue jacket. [ 20 ] The man with the gun is pointing at him and Gilbert motioning them to sit. He has a hoodie on the head and a scarf or bandana below the nose.

Slim and not big. You can’t miss the dark spot or mold on his forehead. He has a revolver with a barrel, mostly held in his right hand. The third man is shorter and his skin is blacker than the skin of the guy with the gun. [ 21 ] Ince hears when they come in, “Where is my money?” in a very aggressive tone. The three of them speak at the same time and their attention is focused on Gilbert. Ince tells them that the weed is on the table. He tries to get up and he is hit on the head with the gun handle and the man with the gun tells him to sit down. At the same time, the fourth man comes in the apartment.

Also with a hoodie on his head, he has a small baseball bat and hits him on the head. Ince protects himself with his hands. Then somebody, the Dread and the short guy say “Who’s chopping around here?” meaning who is selling. [ 22 ] Then he hears the gunshot and sees the head of Gilbert going to the right. He thinks that he is next. The time elapsed between their entry and the shot is according to Ince, maybe 10 minutes. He looks at the shooter and according to him, everybody freezes for about five seconds.

The shooter looks at the three guys and Ince interprets their expression as meaning that they were not expecting what had just happened. [ 23 ] They decide to leave and direct themselves towards the door but somebody signals the cameras. Consequently they leave by the living room window. Ince stares at the shooter who stares at him at the same time. [ 24 ] It is around one o’clock in the morning, when the individuals come in the apartment. [ 25 ] Cross-examined, Ince confirms there was a problem with money for the drugs, considering the previous incident between the Dread and Gilbert. Maybe twenty dollars.

He affirms that on April 30, 2016, he recognises the voice of the Dread before he enters in the apartment. That day, Gilbert is quiet and is in the bedroom, not sleeping before he answers the door. Before he falls asleep, Gilbert is cooking and watching television. [ 26 ] The man with the gun also points it at him and wears gloves. He had never seen the shooter before and never sees him after, until he sees his picture in a French newspaper.

He confirms seeing him yesterday and points his head towards both accused in the box. [ 27 ] He confirms that sometimes he sells drugs to his friends and that Gilbert would also sell sometimes. He identifies the accused Gero, is absolutely sure and could never forget the mold on the forehead. [ 28 ] The Dread, when in the apartment with the others, asks for money. Two IPADS, one cell phone and marijuana, on the table at the time of the incident are taken by the individuals. [ 29 ] The above represents the evidence considered for analysis. POSITION OF THE PARTIES DEFENCE

A) Nikita Hunt [ 30 ] As for identification, the defence submits that the circumstantial evidence tendered by the Prosecution does not support the inference made that the accused Hunt was in the apartment on April 30, 2016. [ 31 ] The defense submits that the circumstantial evidence does not support the inference that Hunt planned the murder with Gero. [ 32 ] In relation with the mens rea required for an accusation of first or second degree murder, the defence advances that under

section 21 of Criminal Code , the Prosecution has not met its burden as to the existence of evidence whether circumstantial or direct. The same argument also applies as to the accusation of assault with the use of a weapon, on the person of Bryan Ince. [ 33 ] There is no inference to be made in relation with Hunt as an aider or abettor, since no fact establishes directly or circumstantially, that he aided, or encouraged Gero, that it was his intention and that he knew that Gero had the intention to kill the victim. [ 34 ] According to the defence the argument relative to the mens rea has more weight. [ 35 ] The defence recognises that the Prosecution has met its burden as for counts 3 and 4.

B) Jermaine Gero [ 36 ] The defence does not argue identification. While recognising that the accused is the one that shoots the victim on April 30, 2016, the defense seeks a committal on an accusation of second degree murder. There is no direct evidence as to the mens rea for a first degree murder, more specifically, no evidence that the murder is planned and deliberate. As for circumstantial evidence, it does not reasonably support the inference of a planned and deliberate murder. [ 37 ] The defence advances that there is no confinement because of the absence of domination and the time span.

There is no causal and temporal link. PROSECUTION [ 38 ] The circumstantial evidence tendered warrants a reasonable inference that the accused Hunt is present in the apartment on April 30, 2016. The evidence also warrants the inference that the murder was planned in advance and that the shooting of the victim was deliberate, far away from an impulsive gesture. [ 39 ] The accused Hunt and Gero planned the murder before and the planning is supported by the totality of the evidence. [ 40 ] An inference of guilt could be made by a jury. DECISION

A) Inferences made by the Prosecution [ 41 ] The first inference made by the Prosecution is that the accused Nikita Hunt is present in the apartment when Gero shoots the victim. The inference is drawn from the palm print on the ledge of the window and the general description made by Ince. The eyewitness has never seen Nikita Hunt in the apartment before April 30, 2016 nor elsewhere. He has known the victim for nearly six years, has been sharing the apartment for more than two months and had previously shared another apartment with the victim.

Consequently, even if the palm print cannot be dated, logic establishes that it is highly improbable that the print was made before the event. [ 42 ] Furthermore, the palm print is on the ledge of the window and direct evidence establishes that the individuals left by the window. The last element is the absence of communications between the phone numbers of Hunt and Gero during the event. [ 43 ] The second inference made by the Prosecution is that the accused Nikita Hunt planned the murder with Gero.

To support this inference, the Prosecution tenders in evidence, the communications between the phone numbers of Hunt and Gero prior to their presence in the apartment and after the incident. The fact that the accused Hunt was found with the gun used by Gero and his bandana, seventy- three days following the murder, is another indication according to the Prosecution. The contents of the communications are not in evidence. [ 44 ] They enter the apartment at one o’clock in the morning, not invited, wearing bandanas, hoodies on their head so has not to be identified by the cameras, Gero wearing yellow gloves.

They want money from Gilbert the victim, want to know who is selling and only shoot Gilbert, run out by the window to avoid facing the cameras. It is a drug related murder and for the Prosecution, a planned and deliberate murder committed by Gero. The accused Hunt either planned the murder with Gero or at the least aided or abetted.

B) Governing principle relating to circumstantial evidence [ 45 ] In R. v. Arcuri [1] , the Supreme court at paragraph 23, explains the complication arising from circumstantial evidence on some essential elements of an offence, tendered at the preliminary inquiry: “ 23- The judge’s task is somewhat more complicated when the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence—That is, those elements as to which the Crown has not advance direct evidence—may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence there is, by definition, an inferential gap between the evidence and the matter to be established—that is, an inferential gap beyond the question of whether the evidence should be believed…….The judge must therefore weigh the evidence , in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. The weighing is however, limited.

The judge does not asks whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.”

[Our underlines] [ 46 ] The above, brings the judge to consider if the facts tendered in evidence reasonably support the inferences made by the Prosecution. The totality of the facts must be considered and only the inferences, if the case, that favor the Prosecution. [ 47 ] The principle underlying an inference requires that there be, not an absolute but a definite link between the fact inferred and the established facts leading to the fact inferred. In other words, the definite link is a deductive reasoning leading logically and reasonably, to the fact inferred.

In the absence of that definite link, the inferred fact belongs to conjecture and speculation. See R . v. Barreira et al . [2] , at paragraphs 47 , on the drawing of inferences.

C) First degree murder, secondary participation in first degree murder i.e. aiding or abetting and confinement [ 48 ] In Dunlop and Sylvester v. R [3] , the Supreme Court at page 891, states the following: “Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender;

an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or

an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit. Thus in an early work, Foster’s Crown law, p.350, we read: ….in order to render a person an accomplice and principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary, and therefore if A. happeneth to be present at a murder, for instance, and taketh no

part in it, nor endeavoureth to prevent it, nor apprehendeth the murderer, nor levyeth hue and cry after him, this strange behaviour of his, though highly criminal, will not in itself render him either principal or accessory.” [ 49 ] In R. v. Hibbert [4] , the Supreme Court, at page 1025, further explains the concept of participation, when it confirms the correctness of the following judge’s instructions as to the mental element: “To aid the commission of a crime, a person must associate himself with the criminal venture by participating in it and trying to make it succeed.

Remember it is no criminal offence to stand by. A mere passive spectator to a crime, no matter how serious the offence, is not guilty of the offence. There must be an intentional assistance of the crime for the accused to be guilty of aiding. In order for you to find the accused guilty on the basis of aiding, it is not sufficient for the Crown to prove his acts or omissions, in fact, had the effect of aiding the commission of the crime.

The Crown must also prove beyond a reasonable doubt that he did the act, or he omitted to do something for the purpose of, or with the intention of, aiding the commission of the crime.” [ 50 ] When the evidence is circumstantial on the mental element, the facts established to support an inference on intention must be sufficiently clear. If you have to go through layers of reasoning to infer, then it becomes obvious that the facts established do not permit an inference and that the reasoning layers constitute speculation. [ 51 ] As for confinement, the Court refers to R . v.

Pritchard [5] , a case in which the Supreme Court discusses the section 231(5) concerning the criteria linked to domination, confinement and temporal link “29- In R. v. Sandhu, 2005 CarswellOnt 8306 (S.C.J.) , on the other hand, a number of accused individuals surrounded and killed the victim in a sudden attack, lasting between 30 and 45 seconds. The accused brought a motion for a directed verdict of acquittal on the charge of first degree murder by virtue of unlawful confinement.

The court agreed and granted the motion, holding that there was no evidence of two discrete acts, only a killing “carried out in a rapid, efficient and collaborative manner” (para.21). Although, the accused individuals did confine the victim, they did so only as an incident of the attack which caused his death. The court’s analysis is consistent with the rationale of s, 231(5) set out in Paré and Kimberley. If no extra domination is involved in the act of confinement, then it cannot be said that the accused confined the victim and the exploited that domination by

an act of killing. Only one episode of domination existed, created by the act of killing, which at the same time confined the victim. In such a case the rationale of s. 231(5) is absent.” [ 52 ] If the facts tendered in evidence point towards a confinement as an accessory act to a killing meaning that the length of time is very short and domination is not exploited to commit a murder then section 231(5) has no application. As stated in para. 27 in Pritchard, confinement and murder must constitute distinct criminal acts. [ 53 ] Concerning aiding and abetting, in R . v.

Barreira et al [6] , relative to a first degree murder, the court states: “69- A person may be found guilty of first degree murder as an aider of planned and deliberate murder, if that person: Did (or, in the case of legal duty, failed to do) something that helped the (or,

a) principal to commit a planned and deliberate murder (the conduct requirement); and Provided the assistance with the intention of helping the (or,

a) principal to commit a planned and deliberate murder (the fault requirement). 70- The fault requirement, as in all cases of secondary participation by aiding, consists of two elements: an intention to help the principal and knowledge of the principal’s intention Maciel at para.87. An aider must know that the principal intends to commit a planned and deliberate murder…” “71- A person may be found guilty of first degree murder as an abettor of a planned and deliberate murder, if that person: Said or did something that encouraged the (or,

a) principal to commit a planned and deliberate murder (the conduct requirement); and

Offered the encouragement, by words or conduct, with the intention of encouraging the (or,

a) principal to commit a planned and deliberate murder (the fault element).” [ 54 ] The above had been previously settled and reaffirmed in R. v.

Briscoe [7] , decision in which the Supreme Court states at paragraph 17: “17- As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime.” [ 55 ] The totality of circumstances must be considered and in some situations even if an aider knows that the principal intents to shoot, it does not implies that he should be imputed the knowledge that the principal’s intention was to commit a murder. In R . v.

Chambers [8] , a confrontation between the friend of Chambers and another person at an open party degenerated and Chambers friend shot the victim in the head. Chambers was charged with second degree murder, as an aider. At paragraph 56, the Ontario Court of Appeal states: “56- On these facts, it is not given that an aider or abettor who knew that the accused was going to shoot should be imputed with knowledge that the shooter had the intent to commit murder. The evidence suggests that the altercation leading up to the shooting happened over a short period of time.

There was no direct evidence suggesting that either accused knew what the other one was going to do. On these facts a jury could have had a reasonable doubt on whether either accused knew of the other’s intent to commit murder, even if the accused knew of the other’s intent to shoot.”

D) Jermaine Gero [ 56 ] Jermaine Gero faces an accusation of first degree murder under

section 235 , an assault on Bryan Ince with use of a weapon under

section 267a) and two other accusations relative to the possession of a prohibited firearm under sections 92(2) (3) and 95(2)

a) of the Criminal Code . [ 57 ] There is direct evidence as to the identification of the accused: - He is identified by Bryan Ince during the event and in court as being present in the apartment on April 30, 2016; [ 58 ] There is direct evidence as for the actus reus of the accusations relative to firearms: - He is seen holding the revolver; [ 59 ] There is direct evidence as for the actus reus of murder: - He is seen shooting the victim in the head, the revolver is loaded; [ 60 ] There is circumstantial evidence as for the accusation of first degree murder: - He is seen coming in the hallway with a pair of yellow gloves, later found with his DNA in them, logically he is the one wearing them, inference made by the Prosecution; - He enters the building with the others, all of them have their hoodies on their head and are dressed in black clothes; - Like the others, he stays in the apartment less than five minutes and leaves by the living room window; - He shoots the victim in the head while positioned on his side, not the eyewitness Bryan Ince even if the possibility is more than present; - He gets rid of the gloves and the T-shirt afterwards; - He wears a bandana during the incident; - Telephone and SMS communications are established between his phone number and the phone number of the accused Hunt, before and after the murder; - His presence in the building at one o’clock in the morning, is an unannounced visit equivalent to an invasion of domicile; - His presence like the others is related to unpaid drugs and selling of drugs; - With the handle of his revolver, he hits the eyewitness Bryan Ince on the head; [ 61 ] The above circumstantial evidence brings the Prosecution to infer that the murder is planned and deliberate. [ 62 ] Is it a reasonable inference from which a jury appropriately instructed could infer culpability on a first degree murder accusation? [ 63 ] The communications, by themselves, are of no help since their contents are unknown.

Consequently, numerous communications between two individuals, before and after their presence on the scene of the crime, do not add to the evidence, if the case, relative to a planned and deliberate murder, while it might permit an inference of a planned visit. [ 64 ] An unannounced visit at one o’clock in the morning, with a loaded revolver, while you wear rubber gloves, a bandana under your nose, and your hoodie on the head to avoid possible identification, added to a short exchange with the victim after which you shoot

him in the head and leave the other one there looking at you exiting by the window leads to the inference made by the Prosecution that Gero planned the murder and deliberately shot the victim in the head. [ 65 ] The Court is of the opinion that there is a definite link between the established facts and the inference made by the Crown and consequently the inference is reasonably supported by the facts. [ 66 ] Some could argue that it is not the strongest inference and the Court would agree. But the criteria is not the strength of the inference but its reasonable character. [ 67 ] Confinement is not considered because the evidence does not reveal two distinct criminal acts.

E) Nikita Hunt [ 68 ] The evidence is circumstantial as to his presence on the scene of the crime.

The palm print, the absence of communication between the two numbers while the invasion and the murder take place, the fact that he is unknown to the eyewitness who has been in relation with the victim for at least five years, makes the inference advanced by the Prosecution reasonably supported by the facts. [ 69 ] The evidence is direct concerning the two accusations relative to the possession of a loaded prohibited firearm. [ 70 ] As for the accusation of first degree murder, either as a principal to a planned and deliberate murder or as an aider or abettor, the evidence is circumstantial and can be summarized as follows: - He enters with the others in the building at one o’clock in the morning.

He wears his hoodie on his head.

He also has a bandana to cover part of his face; - He escapes by the window like the others; - He faces the victim when Gero shoots, does not say or do anything before or after; - He does not hit the eyewitness Bryan Ince, contrary to the accused Gero and the individual with a blue jacket and a small baseball bat; - He is found seventy-three days after with the revolver and the bandana in his packsack; - He knows that the revolver is the one Gero used to kill the victim; [ 71 ] From the above established facts, the Prosecution infers that Hunt and Gero planned a deliberate murder and adding that at least the conduct of Hunt after the murder permits the inference that he is an aider or abettor to the murder committed by Gero. [ 72 ] The Court cannot conclude that the inference made by the Prosecution is reasonably supported by the facts. [ 73 ] Concerning the first degree murder count, during the incident Hunt is present but his presence can be qualified as a mere presence.

No gesture, no aid, no encouragement, no word. Consequently the facts sustaining a planned and deliberate murder inference, must come before or after with the nuance that the Court must examine post-offence conduct and carefully contextualized it. [ 74 ] In the case at bar , the evidence establishes communications between the phone number identified as belonging to Hunt and the phone number belonging to Gero, before and after the murder. The content of the communications are not in evidence.

The other fact established is that seventy-three days after the murder, the revolver is found in Hunt’s packsack when arrested. For the Court, the inference made by Prosecution does not demonstrate a definite link with the facts in evidence. The conclusion remains the same when the totality of the evidence is considered. [ 75 ] The conclusion of the Court is the same when the possibility that Hunt is a participant is examined.

No facts in evidence established the mens rea and actus reus required, more specifically that he had the intention to aid or encourage Gero, that he did, and that he knew that Gero had the intention to kill the victim. [ 76 ] In

summary, there is an absence of evidence as to the mens rea required for a first degree murder and there is an absence of evidence as an aider or abettor, more precisely the actus reus and the mens rea of the offence under

section 21 of the Criminal Code . [ 77 ] The circumstantial evidence establishes that he was present. The direct evidence from the eyewitness does not establish that he did something or omitted to do something, nor does it establishes that he said something to encourage or facilitate the crime. [ 78 ] The witness testified that in the seconds that followed the shooting, everybody froze for about five seconds and he interpreted the facial expression of the three individuals looking at Gero, meaning that the shooting was not supposed to happen. First of all, the eyewitness’s

interpretation above being hearsay, is irrelevant to the issue in litigation and second it does not establish a fact, only a perception. FOR THESE REASONS, THE COURT: [ 79 ] ORDERS Jermain Gero to stand trial on all the counts as written, in the file 500-01-141126-166; [ 80 ] ORDERS Nikita Hunt to stand trial on counts number 3 and 4, as written in file 500-01-141126-166; [ 81 ] DISCHARGES Nikita Hunt of the offences written in counts number 1 and 2.

_________________________________ DANIEL BEDARD, J.C.Q. M e Geneviève Rondeau Marchand Attorney of the DPCP M e Clemente Monterosso MONTEROSSO GIROUX LAMOUREUX AVOCATS Attorney of the accused: Jermaine Gero M e James Dawson Attorney of the accused: Nikita Hunt Dates of hearing: August, 7, 8, 9, and 10 2017