2020 QCCQ 8099, 2020 QCCQ 8099

R. c. Mohamed 2020 QCCQ 8099 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU “Criminal Division” No: 550-01-113308-193 550-01-113373-197 DATE: November 24, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE ANOUK DESAULNIERS, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. Raffat A.

Mohamed and Sean William Newell Accused ______________________________________________________________________ DECISION ON COMMITTAL TO STAND TRIAL ( s. 548 of the Criminal Code ) ______________________________________________________________________ WARNING: ON SEPTEMBER 14, 2020, THE COURT ISSUED AN ORDER, PURSUANT TO

SECTION 539 OF THE CRIMINAL CODE , PROHIBITING THE PUBLICATION, BROADCAST OR TRANSMISSION OF THE EVIDENCE TAKEN AT THE PRELIMINARY INQUIRY BEFORE SUCH TIME AS THE TRIAL IS ENDED. [ 1 ] Raffat A. Mohamed is charged with second degree murder. [1] In a related file, Sean William Newell is charged with being an accessory after the fact to murder. [2] The Court conducted a joint preliminary inquiry in the files of these two accused. [ 2 ] The evidence shows that Raffat Mohamed called Sean Newell in the evening of July 23, 2019.

Following this communication, Newell left his apartment in Ottawa to deliver a backpack to Mohamed, who was staying overnight in an apartment in Gatineau. Raffat Mohamed immediately retrieved a gun from the backpack, cocked it and aimed it at Jeffrey Claude Godin. Raffat Mohamed fired one shot at the feet of Jeffrey Godin, who jumped on him. A short struggle ensued, during which Mohamed killed Godin with a single gunshot through the chest.

Sean Newell immediately grabbed the gun and left the premises with it. [ 3 ] The Crown seeks a committal to trial for both accused on a charge of first degree murder, to which the defence objects. [ 4 ] For the following reasons, the Court finds that there is evidence upon which a reasonably jury properly charged could return a guilty verdict against Raffat Mohamed for first degree murder. [ 5 ] As for Sean Newell, the Court finds that there is no evidence that he had any reason to suspect that Mohamed intended to shoot the victim. Therefore, he should not be ordered to stand trial on a charge of murder.

However, there is evidence upon which a reasonable jury properly instructed could return a guilty verdict of guilty on the related charge of criminal negligence causing death and the charge of being an accessory after the fact to murder. ANALYSIS 1. The test for committal [ 6 ] The test for ordering an accused to stand trial is well settled: Is there any evidence upon which a reasonable jury properly chargeed could return a verdict of guilty? [3] During this analysis, the Court should not assess the credibility or reliability of the witnesses.

Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown’s theory are to be considered. [4] [ 7 ] The test is the same whether the evidence is direct or circumstantial. However, where the Crown’s evidence includes

circumstantial evidence, the Court must engage in a limited weighing of the whole of the evidence to determine whether a reasonable jury properly instructed could infer guilt. This task of limited weighing never requires consideration of the credibility or inherent reliability of the evidence itself. Rather, the Court should assess the reasonableness of the inferences to be drawn from the circumstantial evidence according to the Crown’s theory. [5] [ 8 ] In Hunt v.

R ., [6] our Court of Appeal proposed the following test for assessing the sufficiency of circumstantial evidence: The test of sufficiency at a preliminary inquiry is concerned with both the absence of evidence and the presence of weak evidence. If there is an absence of evidence, no trier of fact could reasonably find something proved. If the evidence is present but so weak that no trier of fact could find an essential element proved beyond reasonable doubt , the protective function of the preliminary inquiry requires that the accused be discharged from criminal jeopardy.

This is a question of law that necessarily requires a “limited weighing” of the evidence. It requires the presiding judge to determine whether a trier of fact could find an element of the offence proved and in this limited sense it is inextricably linked to the standard of proof applicable at trial.

The presence of circumstantial evidence that is so weak that it cannot reasonably meet this standard is functionally the same as the absence of evidence and the accused must be discharged (…) (Underlining added.) [ 9 ] An accused may be ordered to stand trial for a lesser and included offence or for another offence “in respect of the same transaction”, [7] i.e. an offence interwoven with, or that relates to, the offence charged in the information. 2.

Committal for trial for Raffat Mohamed [ 10 ] Let us first consider whether Raffat Mohamed should be ordered to stand trial for murder, before turning to the test for committal on first degree murder. 2.1. Committal for trial on a charge of murder [ 11 ] Both parties agree that the Crown adduced sufficient evidence to justify that Raffat Mohamed be ordered to stand trial on a charge of manslaughter pursuant to s. 222 of the Criminal Code ( Cr. C .).

Therefore, the parties do not contest that Mohamed caused the victim’s death. [ 12 ] Ordering that Raffat Mohamed be sent to trial for the more serious charge of murder requires that there be evidence upon which a reasonable jury properly instructed could find that Mohamed meant to cause the victim’s death, or bodily harm that he knew was likely to cause the victim’s death, and was reckless whether the death ensued or not. [ 13 ] The Crown adduced evidence to support the proposition that Raffat Mohamed meant to shoot the victim and meant to cause his death or bodily harm, which he knew likely to cause the victim’s death.

This evidence may be divided under the following themes - Raffat Mohamed had an argument with the victim in the hours prior to the shooting; - Following this argument, Raffat Mohamed called Sean Newell, telling him to bring the gun; - Raffat Mohamed acted very decisively from the time he got the gun; - Raffat Mohamed was familiar with the gun’s workings; - The victim was shot in the torso at, or nearly at, point-blank range; and - Raffat Mohamed once told Kyle Hiemstra that, when the light of the laser pointer hits your body, “bang, you’re pretty much dead”. [ 14 ] Let us examine this evidence. (

a) Raffat Mohamed got into an argument with the victim in the hours prior to the shooting [ 15 ] In the afternoon prior to the shooting, Raffat Mohamed went to the apartment of Treasure Langevin and Stuart Smith in Gatineau, saying he needed a place to “crash” due to his excessive consumption of alcohol.

There, he met the victim for the first time, when the latter went to the apartment to visit another one of its occupants, Patrick Josué. [ 16 ] On a couple of occasions during the evening, neighbour Stéphanie Drover saw Raffat Mohamed and the victim smoking in the stairway leading up to Langevin and Smith’s second-floor apartment. She heard Raffat Mohamed making unpleasant remarks (“ des petites remarques niaiseuses ”) and noticed that he was argumentative, the kind of mood, she said, that can be triggered by alcohol. Ms.

Drover remembers that, at one point during the evening, four individuals were smoking on the stairs, including the victim and Raffat Mohamed. [ 17 ] Treasure Langevin testified that, while she was in her bedroom painting, she heard Raffat Mohamed get in a heated argument with the victim and Patrick Josué in her apartment’s living room. When the three went outside to smoke, she went with them to make sure they didn’t get too loud and bother the neighbours. There was palpable tension, she said, between Raffat Mohamed and the two others. [ 18 ] They eventually came back into the apartment and Ms.

Langevin went back into her bedroom. Right before the shooting, she heard Raffat Mohamed yelling repeatedly from the living room “Pussy, you think you’re tough?” When she opened the bedroom door and looked into the living room, she saw Mohamed standing up and pointing a gun at the victim.

[ 19 ] Stuart Smith was in the living room at the time. He confirmed that, when Raffat Mohamed pointed the gun at Jefrey Godin, he said something that included the word “pussy”. [ 20 ] This evidence tends to show that Raffat Mohamed got into an argument with the victim prior to the shooting. It supports the proposition that Mohamed meant to shoot the victim following his altercation with him. (

b) Raffat Mohamed called Sean Newell, telling him to bring him the gun [ 21 ] Information obtained from cellular service providers shows the various calls made and received by the occupants of the Gatineau apartment in the hours preceding the events, as well as the text messages they sent and received.

This information also provides the location of the various cellular phones involved at the time of the communication in question. [8] [ 22 ] This information tends to show that, at 18:53 on the night of the shooting, Sean Newell, who was located in Ottawa at the time, had a five minute phone call with someone calling from the number 613-[...].

There is ample evidence linking Raffat Mohamed to this number. [9] Among other things, evidence shows that, earlier that same day, he used the cellular phone associated with this number to obtain a taxi ride from Ottawa to Langevin and Smith’s apartment in Gatineau. [10] The taxi company kept an audio recording of the call, and Officer François Gagnon testified that he recognized Raffat Mohamed’s voice as that of the client on the phone. [ 23 ] After his phone conversation with Mohamed, Sean Newell contacted Capital Taxi and took a taxi from Ottawa to the apartment in Gatineau.

At 19:25, Mohamed and Newell talked again on the phone for a minute and a half. According to their records, Capital Taxi dropped Newell off at the apartment around 19:35, which is consistent with the testimonies of Stéphanie Drover and Treasure Langevin. [ 24 ] When Sean Newell entered the apartment, he walked directly to Raffat Mohamed and immediately handed him a backpack. This tends to show that the purpose of Newell’s trip was to make this delivery. [ 25 ] Raffat Mohamed immediately reached into the bag, took out a wireless speaker, reached inside the bag again, and retrieved the gun.

A jury could infer from this direct, purposeful approach that Mohamed knew the gun was in the backpack. This conclusion supports the Crown’s theory that Mohamed called Newell at 18:53 and asked him to bring the gun. [ 26 ] The testimony of Kyle Hiemstra also supports this proposition. He said that, in the months leading up to the day of the shooting, Raffat Mohamed would regularly stay at his home in downtown Ottawa. According to Hiemstra, Newell and Mohamed often communicated in person and on the phone about where to stash a gun.

He also stated that he once heard Mohamed request by phone that the gun be brought to him at Hiemstra’s apartment. Hiemstra assumed that Mohamed was talking to Newell because, a few minutes later, Newell, who lived nearby, arrived with the gun in a black backpack. This would have been in April or May 2019.

On other occasions, he heard Raffat Mohamed requesting on his cellular phone that the gun be brought to him, and naming Sean Newell during these conversations, but Kyle Hiemstra did not witness the gun being delivered. [11] [ 27 ] The facts that Raffat Mohamed had requested that the gun be brought to him in the past and that on one occasion Sean Newell had delivered the gun shortly thereafter in a backpack increases the likelihood that this is also what took place on the evening of the shooting. [ 28 ] All of this evidence tends to show that, on July 23, 2019, Raffat Mohamed called Sean Newell, requested that he bring him the gun.

It supports the proposition that Mohamed meant to shoot the victim when he did. (

c) Raffat Mohamed acted very decisively from the time he got the gun [ 29 ] As stated above, the evidence shows that Raffat Mohamed acted purposefully as soon as Sean Newell delivered the backpack to him. He reached into the bag right away, took out a wireless speaker, reached inside the bag again, and pulled out the gun. According to Stuart Smith and Patrick Josué, who were in the apartment at the time, Raffat Mohamed immediately cocked it and pointed it at the victim. Josué noticed that the gun’s laser pointer was turned on.

Raffat Mohamed stood up and, according to Treasure Langevin, said to the victim, “Pussy, you think you’re tough?” When Josué tried to intervene by touching Raffat Mohamed’s hand, Mohamed told him to back off and walked around the coffee table in the living room, still pointing the gun at Jeffrey Godin. [ 30 ] Raffat Mohamed looked so determined to use the gun that Patrick Josué felt he needed to leave the apartment immediately.

Because Mohamed was standing near the front door, Patrick Josué felt he had no other choice but to flee by jumping out of the second- storey bedroom window, which he proceeded to do. [ 31 ] When Stuart Smith tried to place himself between Raffat Mohamed and Jeffrey Godin, Mohamed ordered him to move away, holding the gun with his arm extended, pointing at the victim. Mohamed then shot a bullet in front of him, through the floor, causing Smith to back off. [ 32 ] This evidence supports the proposition that Raffat Mohamed meant to use his gun against the victim when he did. (

d) Raffat Mohamed was familiar with the gun’s workings [ 33 ] Stuart Smith testified that, about a month before the events of July 23, 2019, he met Raffat Mohamed at an apartment in downtown Ottawa to purchase crack cocaine from him and he noticed that Mohamed had a gun. [ 34 ] There is evidence supporting the proposition that the gun that Stuart Smith saw is one and the same as (1) the one that Kyle Hiemstra saw at his home, (2) the gun that Raffat Mohamed used to shoot the victim, and (3) the gun found at Sean Newell’s apartment one week after the shooting.

This evidence includes the following: - According to Kyle Hiemstra, the gun was black and was equipped with a red laser pointer. It also had a slide on top that could be moved back and forth. Hiemstra witnessed Raffat Mohamed load a magazine into the gun’s handle, from the bottom;

- Stuart Smith provided a similar description: the gun he saw was a Glock; it was black, with a piece on top that would slide back and forth to cock the gun; it was equipped with a red laser pointer, and the magazine would slide into it from the bottom, pushing up; - Stuart Smith testified that, when he saw the gun in his apartment on July 23, 2019, he recognized it as the one he observed in possession of Mohamed approximately a month earlier; - After Raffat Mohamed shot the victim, Sean Newell grabbed the gun and left the apartment with it, according to Treasure Langevin; - A black Glock gun with a red laser pointer, fitting the description provided by Kyle Hiemstra and Stuart Smith, was found hidden at Sean Newell’s apartment a week after the events; - Josée Houde, forensic biologist, took blood samples from the breech (“ culasse ”) of this gun, which matched the Jeffrey Godin’s DNA; - Jean-François Daigneault, an expert in ballistics, also examined this gun.

He stated that it was equipped with a slide on top that would go back and forth and a functioning red laser pointer, and that a magazine could be inserted into the gun’s handle; - He also testified that the empty gun shells found in Smith’s apartment after the shooting were fired from this very gun. [ 35 ] This evidence supports the proposition that the gun Raffat Mohamed used to shoot the victim was the same gun that Kyle Hiemstra and Stuart Smith saw in his possession before the events. This would tend to show that Mohamed was familiar with the gun’s workings, from having handled it in the past.

This evidence supports the proposition that Raffat Mohamed meant to discharge the gun when he did, negating the possibility of an accident. [ 36 ] In addition, the Crown adduced evidence that tends to show that, when he fired the gun, Mohamed intended to cause the victim’s death or to cause him bodily harm that he knew was likely to cause the victim’s death and was reckless whether death ensued or not.

This evidence includes the following elements: - the victim was shot in the neck and torso at, or nearly at, point-blank range; and - Mohamed once told Hiemstra that, when the laser pointer hits your body, “you’re pretty much dead”. [ 37 ] Let us examine this evidence. (

e) The victim was shot in the neck and torso at, or nearly at, point-blank range [ 38 ] Forensic pathologist Yann Dazé explained that the victim was shot once at the base of the neck. The bullet went through the trachea, damaged the descending thoracic aorta, and pierced the upper and lower lobes of the left lung. Dr. Dazé testified that each of these wounds were deadly. [ 39 ] It is common knowledge that many vital organs are located in the neck and torso, including the trachea, the heart and the lungs.

A reasonable jury properly charged could infer from the location of the victim’s wounds that, when Raffat Mohamed shot the victim in this way, he intended to cause his death or that he intended to cause him life-threatening wounds and was reckless whether the victim died or not. [ 40 ] In addition, Dr. Dazé and Jean-François Daigneault testified that there are strong indications that the victim was shot at, or nearly at, point-blank range. Daigneault went so far as to say that the victim was shot from a distance inferior to 2.5 centimetres.

From the proximity of the shot, a reasonable jury properly instructed could infer that, when Raffat Mohamed fired his gun, he intended to cause his death or that he intended to cause him life-threatening wounds and was reckless whether the victim died or not. (

f) Raffat Mohamed once told Kyle Hiemstra that, when the light of the gun’s laser pointer hits you, “bang, you’re pretty much dead” [ 41 ] Both Stuart Smith and Patrick Josué testified that they saw the light of the gun’s laser pointer as soon as Raffat Mohamed handled it in the apartment. [ 42 ] Kyle Hiemstra testified that, on one occasion during the months leading to the events, Raffat Mohamed told him that when the light of the gun’s laser pointer hits you, “bang, you’re pretty much dead”. [ 43 ] This evidence supports the proposition that Raffat Mohamed meant to shoot the victim as soon as he activated the gun’s laser pointer and was aware of the deadly circumstances that might ensue.

Conclusion on the committal for trial of Raffat Mohamed on a charge of murder [ 44 ] There is ample evidence from which a reasonable jury properly instructed could find that the Crown has proven beyond a reasonable doubt that Raffat Mohamed meant to cause the death of Jeffrey Godin or meant to cause him bodily harm that he knew was likely to cause his death and was reckless whether the death ensued or not. 2.2 Committal for trial on a charge of first degree murder [ 45 ] The Crown argued that Raffat Mohamed should be ordered to stand trial for first degree murder for two reasons: - The murder was planned and deliberate; or

- He caused the victim’s death when committing or attempting to commit forcible confinement. 2.2.1 Was the murder planned and deliberate? [ 46 ] Subsection 231(2) Cr.

C. provides that murder “is first degree murder when it is planned and deliberate.” The aspects of planning and deliberation are distinct, but essential, elements of first degree murder. [12] The notion of planning refers to premeditation; the word “deliberate” means “considered, not impulsive”. [ 47 ] Did the Crown present evidence that the victim’s murder was planned and deliberate? [ 48 ] As discussed above, there is evidence that Raffat Mohamed got into an argument with the victim and then called Sean Newell to request that he bring him the gun.

A reasonable jury properly instructed could infer from this evidence that Mohamed planned in advance to shoot the victim as he did. [ 49 ] The evidence also shows that about an hour elapsed between the moment Raffat Mohamed called Sean Newell to request the gun and the moment Sean Newell delivered it in a backpack. During this time, Raffat Mohamed remained in the fairly calm environment of the apartment or the staircase. He had ample opportunity to think about the scope and nature of what he was planning.

In addition, a reasonable jury properly instructed could infer from the way Raffat Mohamed acted decisively when he received the gun, as discussed above, that he shot the victim in a lucid, well thought-out execution of his earlier plan, i.e. deliberately. [ 50 ] Because the vast majority of Raffat Mohamed’s actions showing his deliberate execution of his plan to shoot the victim occurred before Jeffrey Godin jumped on him, a jury could reasonably find that Raffat Mohamed acted deliberately when he discharged his gun, even if they find that he shot the victim during his struggle with him. [ 51 ] In conclusion, there is sufficient circumstantial evidence upon which a reasonable jury properly instructed could find, beyond a reasonable doubt, that Raffat Mohamed committed the first degree murder of the victim, because the murder was planned and deliberate. [ 52 ] Therefore, he should be ordered to stand trial on a charge of first degree murder. 2.2.2 Did Raffat Mohamed cause the victim’s death when committing or attempting to commit forcible confinement?

The law [ 53 ] Subsection 231(5)(

e) Cr. C. provides that, irrespective of whether a murder is planned and deliberate, murder is first degree murder when the death of a person is caused by another person committing or attempting to commit forcible confinement. [ 54 ] The offence of unlawful confinement is set out in s. 279(2) Cr. C.

It is settled law that there is unlawful confinement within the meaning of this provision if, for any significant period of time, a victim is coercively restrained or directed contrary to their wishes, so that they could not move about according to their own inclination and desire. [13] [ 55 ] According to the principles laid out by the Supreme Court of Canada in R. v. Harbottle , [14] an accused may be found guilty of first degree murder pursuant to s. 231(5)(

e) if the Crown has established beyond a reasonable doubt that:

(1) The accused was guilty of forcible confinement or of attempting to commit that crime;

(2) The accused was guilty of the murder of the victim;

(3) The accused participated in the murder in such a manner that he was a substantial cause of the death of the victim;

(4) There was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and

(5) The crimes of unlawful confinement, whether completed or attempted, and murder were part of the same transaction, in that the victim’s death was caused while the accused was confining or attempting to unlawfully confine the victim or another as part of the same series of events. [ 56 ] The offence of unlawful confinement should not be consumed into the act of killing but rather, should constitute aggravating circumstances involving a substantial and high degree of blameworthiness, above and beyond that of murder. [15] Therefore, in order to trigger s. 231(5)(

e) Cr. C ., the confinement and the murder must constitute distinct criminal acts. [16] The law applied to the facts [ 57 ] According to Stuart Smith, once Raffat Mohamed retrieved the gun from the backpack, he immediately pointed it at Jeffrey Godin, got up from the couch and walked to position himself in front of the apartment door, blocking any possible exit for the victim. He stayed there, still aiming the gun at the victim, for at least a minute before firing the first shot.

It is clear that as Raffat Mohamed was pointing the gun menacingly at Jeffrey Godin, he deprived him of his liberty of movement. [ 58 ] During this interval, Patrick Josué had enough time to exit the living room, walk through the adjacent room, remove the window screen, jump out the second floor window, warn Ms.

Drover about the danger, and run to the front of the building before he heard the first shot. [ 59 ] This is evidence upon which a properly instructed jury could reasonably find that Raffat Mohamed confined Jeffrey Godin and restrained his movement beyond the transitory restraint inherent to his murder. [17]

[ 60 ] A reasonable jury properly instructed could find from this evidence that the Crown has proved the five elements of first degree murder set out in Harbottle beyond a reasonable doubt . [18] In particular, a jury could reasonably find that the crimes of unlawful confinement and murder were part of the same transaction, in that the victim’s death was caused while the accused was confining him as part of the same series of events.

This evidence is also capable of supporting a finding that the victim’s confinement was a distinct criminal act from the murder. [ 61 ] Raffat Mohamed submits that “there has been a temporal cutoff and that the element of domination, if any, had disappeared when the victim attacked the accused”. Thus, Raffat Mohamed argues that the fourth criteria in Harbottle , above, is not met. The Court, respectfully, disagrees.

Instead, the Court finds that a properly instructed jury could reasonably find that Raffat Mohamed still controlled the gun when it was fired during the short struggle with the victim and that, therefore, Mohamed’s actions were still substantially connected to Jeffrey Godin’s death. [ 62 ] Therefore, Raffat Mohamed should be ordered to stand trial on a charge of first degree murder. 3.

Committal for trial for Sean Newell [ 63 ] The Crown argued that Sean Newell brought a gun to Raffat Mohamed for the purpose of helping him commit the first degree murder of Jeffrey Godin and he therefore became a party to the offence. In the alternative, the Crown argued that he should be sent to trial on a charge of criminal negligence causing death.

Also, the Crown asks that Sean Newell be sent to trial on the charge as laid, i.e. being an accessory after the fact to murder. 3.1 Committal for trial on a charge of murder [ 64 ] The Crown argued that Sean Newell brought the gun to Raffat Mohamed for the purpose of aiding him to commit the first degree murder of Jeffrey Godin and should be ordered to stand trial for this offence pursuant to s. 21(1)(

b) Cr. C . That provision provides that everyone who “does or omits to do anything for the purpose of aiding any person to commit it” is a party to an offence. An accused’s liability as an "aider" requires

an act or omission for the purpose of aiding the commission of the offence. [ 65 ] The mental state ( mens rea ) requirement reflected in the words “for the purpose” under s. 21(1)(

b) Cr. C has two components: intent and knowledge. [ 66 ] For the intent component, “purpose” should be understood as essentially synonymous with “intention”. The Crown must prove that the aider intended to assist the principal in the commission of the offence.

However, “purpose” should not be interpreted as incorporating the notion of “desire” into the fault requirement for party liability. [19] The Crown need not prove that the aider desired that the offence be successfully committed. [20] In respect of murder, there is no requirement that an aider subjectively approve of or desire the victim’s death. [21] [ 67 ] 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, although he or she need not know precisely how it will be committed. [22] [ 68 ] Is there any evidence that Sean Newell knew that Raffat Mohamed intended to shoot Jeffrey Godin? [ 69 ] As discussed earlier, there is evidence that Raffat Mohamed called Sean Newell to ask him to bring the gun.

Also, Treasure Langevin testified that, when she met Sean Newell on the stairs before he entered the apartment, he told her that Raffat Mohamed had asked him to bring the backpack. [ 70 ] The Crown submits that circumstantial evidence showing that Sean Newell knew he was bringing a gun to Raffat Mohamed allows the inference that he also knew that Raffat Mohamed intended to shoot the victim. The Court respectfully disagrees. [ 71 ] There is no evidence that Sean Newell knew that Raffat Mohamed intended to discharge the gun against anyone.

Evidence that one wishes to be in possession of a gun does not lead to the inference that one plans to use it to kill or seriously injure someone else. On the contrary, Kyle Hiemstra’s evidence shows that, in the past, Sean Newell had delivered the gun to Raffat Mohamed at his request, without any consequence. There is no evidence that Sean Newell had any reason to suspect that the situation would be different in the present case. [ 72 ] It seems that Raffat Mohamed and Sean Newell had never met, nor heard of, Jeffrey Godin before July 23, 2019.

There is no evidence that Newell had any reason to suspect that Raffat Mohamed felt any animosity toward Godin. [ 73 ] It is pure speculation to argue that Raffat Mohamed, having called Sean Newell repeatedly in the hour prior to the shooting, must have told him of his intention to shoot the victim. At very best, this is extremely weak circumstantial evidence. A reasonable jury properly instructed could not find that it is the only logical inference from the circumstantial evidence.

For example, one could also argue that Raffat Mohamed must have kept his intentions to himself, for fear that Sean Newell, if informed of his deadly plan, would not bring him the gun. [ 74 ] A reasonable jury properly instructed could not conclude that the Crown has proven beyond a reasonable doubt that Sean Newell knew that Raffat Mohamed intended to shoot anyone, or that Sean Newell had reason to suspect this and deliberately failed to inquire. [ 75 ] For these reasons, the protective function of the preliminary inquiry against unjustified criminal jeopardy commands against ordering Sean Newell to stand trial on a charge of first degree murder. 3.2 Committal for trial on a charge of criminal negligence

[ 76 ] The Crown argued that, in the alternative to being ordered to stand trial on a charge of murder, Sean Newell should be committed to trial on a charge of criminal negligence causing death. [ 77 ] The Criminal Code provisions dealing with criminal negligence are found at ss. 219 and 220 , which provide: 219

(1) Every one is criminally negligent who (

a) in doing anything, … shows wanton or reckless disregard for the lives or safety of other persons. 220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable (

a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (

b) in any other case, to imprisonment for life. [ 78 ] The prohibited conduct ( actus reus ) of criminal negligence causing death requires that the accused undertook

an act that caused someone’s death. The fault element is that this act “shows wanton or reckless disregard for the lives or safety of other persons”. As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances.

This standard asks whether the accused’s actions created a risk to others, and whether “a reasonable person would have foreseen the risk and taken steps to avoid it if possible”. [23] [ 79 ] However, in the context of criminal negligence causing death, the requisite degree of departure has been described as elevated, i.e. a marked and substantial departure from the conduct of a reasonable person in the accused’s circumstances. [24] [ 80 ] There is no prescriptive norm or standard by which to determine whether an activity shows wanton or reckless disregard for the lives or safety of others.

The law requires careful examination of the conduct in question, on the occasion in question, to determine whether criminal negligence has been proved beyond reasonable doubt. This is a contextual assessment. [25] [ 81 ] The test to determine whether the accused caused the victim’s death is whether his or her acts were a significant contributing cause to the death. [26] Proof of intention or actual foresight of the consequence of death is not required.

Rather, criminal negligence requires a marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively, gave no thought to that risk. [27] [ 82 ] Did the Crown present evidence on each of these essential elements? [ 83 ] As examined above, there is evidence that Sean Newell brought the gun to Raffat Mohamed at his request.

There is also a great deal of evidence that Raffat Mohamed was, at the time, very intoxicated: - He had come to the apartment in Gatineau to “crash” due to his excessive consumption of alcohol; - Stuart Smith, Treasure Langevin and Patrick Josué testified that Raffat Mohamed was very intoxicated when they first saw him and that he continued drinking cognac (“Hennessy”) during the afternoon and evening; - Ms.

Drover testified that Raffat Mohamed seemed intoxicated when she saw him on the staircase leading to the apartment; - According to officer Gilbert, who arrested Raffat Mohamed minutes after the shooting, he was intoxicated and smelled of alcohol. [ 84 ] There is also evidence that Sean Newell was aware that Raffat Mohamed was very intoxicated: - He told Treasure Langevin and Stuart Smith that he needed to accompany Raffat Mohamed to their apartment, due to his high level of intoxication, to make sure he got there safely; - According to Ms.

Langevin, Sean Newell and Raffat Mohamed were drinking cognac together when she returned to her apartment; - According to Kyle Hiemstra, Sean Newell and Raffat Mohamed saw each other on a daily basis, and the latter was often intoxicated with alcohol.

Therefore, Sean Newell was able, from his past interactions with Raffat Mohamed, to identify and recognize in him signs of intoxication; - There is evidence that they spoke on the phone a number of times in the hour before the shooting, giving Sean Newell ample opportunity to assess that Raffat Mohamed was still very intoxicated. [ 85 ] Because Sean Newell provided Raffat Mohamed with the gun he used to shoot the victim, a reasonable jury properly charged could find that: - Sean Newell’s actions were a significant contributing cause to the victim’s death; - Entrusting a loaded firearm to a heavily intoxicated person ran an obvious and serious risk to all those present, and Sean Newell gave no thought to that risk; - A reasonable person would have foreseen the risk and taken steps to avoid it;

- Sean Newell’s actions constitute a marked and substantial departure from the conduct of a reasonably prudent person in these circumstances. [ 86 ] For these reasons, Sean Newell should be ordered to stand trial on a charge of criminal negligence causing death pursuant to s. 220(

a) Cr. C . 3.3 Committal for trial on a charge of being an accessory after the fact to murder [ 87 ] Subsection 23(1) Cr. C. provides that “[a]n accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.” [ 88 ] Sean Newell witnessed Raffat Mohamed threatening and shooting the victim. According to Ms. Langevin, Sean Newell grabbed the gun and exited the apartment right after Jeffrey Godin was shot.

As examined above, there is strong evidence that the gun that the police found hidden at his home a week later was the same one. [ 89 ] A reasonable jury properly instructed jury could find from this evidence that Sean Newell, knowing that Raffat Mohamed had just murdered the victim, removed the gun from the crime scene for the purpose of helping him to escape. [28] [ 90 ] Sean Newell should, therefore, be ordered to stand trial for being an accessory after the fact to murder, as charged.

CONCLUSION [ 91 ] Mohamed should be ordered to stand trial on a charge of first degree murder, and Newell should be ordered to stand trial on a charge of criminal negligence causing death and a charge of being an accessory after the fact to murder. FOR THESE REASONS, THE COURT ORDERS Raffat A. Mohamed to stand trial on a charge of first degree murder, pursuant to s. 235(1) Cr. C. in file 550-01-113308- 193; ORDERS Sean William Newell to stand trial on a charge of criminal negligence causing death, pursuant to s. 220(

a) Cr. C. , and a charge of being an accessory after the fact to murder, pursuant to s. 23(1) Cr. C. in file 550-01-113373-197. __________________________________ Anouk Desaulniers, J.C. Q. Mtre Isabelle Bouchard and Mtre Stéphane Rolland For the Crown Mtre Emmanuelle Béliveau-Labrecque For the accused Sean William Newell Mtre Elise Pinsonnault For the accused Raffat A. Mohamed Dates of hearing: September 14 to 30, 2020, and October 1, 2020