Was it still murder?

When 15-year-old Jane Creba was walking on Yonge Street in Toronto on December 26, 2005, the last thing that was on her mind was that soon she would die. While shopping with her sister, she crossed the road to go to an athletic wear store on the westside of the street, when a gunfight between two gangs erupted. The first inkling she got of her pending death was when she heard the gunshots. Seconds later, she crumpled to the ground with one bullet having gone through her upper torso, lodging in her clothing. She was rushed to the hospital and soon after, she died during emergency surgery.

The police arrested two men on several gun charges at Castle Frank subway station minutes after the shooting: Andre Thompson, 20, who was on probation at the time; and a 17-year-old male who cannot be identified under Canada’s Youth Criminal Justice Act. Thompson had previously been released just before Christmas from Maplehurst jail near Milton, Ontario, where he had served 30 days for his role in a convenience-store robbery. He declined a bail hearing for his current charges. Police believed as many as 10 to 15 people were involved in the shooting and that more than one gun was fired.

As of December 2007, ten people had been charged with murder or manslaughter in the case, three of whom were youths. Those charged with second-degree murder include Tyshaun Barnett and Louis Woodcock, both 19, Jeremiah Valentine, 24, and a youth who was 17 at the time of the shootings. One of the teenagers who was arrested in June and charged with manslaughter was exonerated on October 25, 2007 after the preliminary hearing. The teenager charged with murder was committed to trial.

Now the question everyone was asking themselves, why did those who were charged with second degree murder, have their charges reduced to that of manslaughter?

The judge that made that decision was Superior Court Mr. Justice Ian Nordheimer. I have to say right from the start that this judge is not the brightest light in the Superior Court, not by a long shot.

Years ago, I was charged with impersonating a peace officer because I told a man I was serving a court document on and who was attacking me, that I was a peace officer. The police charged me and the trial judge acquitted me. The crown appealed and it went before Superior Court Mr. Justice Ian Nordheimer. My argument was that both the Criminal Code of Canada and the Interpretations Act of Ontario define a peace officer (amongst other things) as a person employed for the service of civil process. He convicted me nevertheless. I filed my own appeal to the Ontario Court of Appeal and five minutes before the Court heard my appeal, the representative from the Attorney General’s office told me that they were prepared to tell the Court that I was right. Needless to say, my appeal was granted.

These young thugs who were shooting at one another from both sides of that very busy street in Toronto had no right to be carrying guns in the first place. Second, they shouldn’t have been firing them on a busy street like Yonge Street. They had to have known that sooner or later, an innocent person would be shot by a stray bullet fired by one of the gunmen. And as to be expected, such a person was shot.

One of the gunmen (whose name cannot be revealed by order of the court) was part of a gang of young people standing on the sidewalk on the west side of Yonge Street just north of the entrance to a store known as the Foot Locker. He was in possession of a loaded, nine millimetre Ruger handgun. The young man, sometimes referred to as the southbound shooter, while looking southward on Yonge Street, fired his weapon several times striking at least six people. He was firing southward at a person referred to in the evidence as the ‘northbound shooter’. That person had exited the Foot Locker shortly after the young man and his cohorts had exited that store. He and the others were standing on the sidewalk near the entrance to the Foot Locker when the northbound shooter exited that store.

The northbound shooter was standing on the sidewalk south of where the young man was standing and looking north towards him. The northbound shooter made a comment to the group of people who included the young man. As he made the comment, he lifted his sleeve to reveal a .357 Magnum pistol in his hand. A rapid exchange of gunfire followed. Ms. Creba and several other bystanders had the misfortune to find themselves between the northbound shooter and the young man when the gun fight started.

The northbound shooter was standing on the sidewalk on the west side of Yonge Street facing north. He fired the .357 Magnum northward toward the young man at least three times. One of those shots struck and killed Ms. Creba. There was no way of knowing whether Ms. Creba was struck by the first shot fired by the northbound shooter or one of the subsequent shots. None of the shots fired by the young man struck Ms. Creba.

So you may very well ask, since he didn’t fire the bullet that killed Jane Creba, why should he be facing a murder charge in the first place? Well, first of all, it is irrelevant as to who fired first.

If there is no reasonable basis upon which a jury could find that the young man’s actions directly or indirectly caused Ms. Creba’s death, then obviously the young man could not be committed for trial for either murder or manslaughter.

However, Section 222(1) of the Criminal Code provides that a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

Now this doesn’t mean that if the young man stuck his middle finger up in the air to insult a gunman across the street and the gunman shoots at him and hits an innocent bystander; that the young man is indirectly responsible for the death of the innocent victim.

In this particular case, the young man wasn’t sticking his finger up in the air. He was shooting at the man across the street who accidentally shot the young girl to death. The young man shot six other persons of whom none died so one cannot say that he was not indirectly responsible for the death of Jane Creba.

In committing the young man for trial on the charge of second degree murder, the preliminary inquiry judge held that the totality of the evidence could support a finding that the young man chose to participate in a mutual shootout with the northbound shooter on a crowded downtown street, that both the young man and the northbound shooter fired their weapons into the crowd in furtherance of their decisions, and that Ms. Creba died in the shootout. He concluded:

“In my opinion there is evidence for the jury to reasonably conclude that the accused’s participation in the shootout was a “significant contributing cause” of the death of Jane Creba.”

Then comes the issue whether the act of the young man firing back could be a contributing cause of the death of the victim on the basis that, but for the young man firing back, the northbound shooter might not have fired any further shots which, in turn, raises the possibility that the fatal shot might not have been fired.

My response is; who cares? They both should not have been firing their guns at each other in a crowded street in the first place. Because an innocent bystander died as a result of the shooting, they are equally responsible for her death.

You have to keep in mind that the gun fight, during which Ms. Creba was caught in the crossfire and killed, was a joint endeavour between two rival groups, both armed with loaded guns, both unwilling to retreat and both prepared to open fire on a sidewalk crowded with innocent bystanders. On this view of the evidence, the young man and the northbound shooter, as well as others in their groups, had decided to shoot it out on Yonge Street before the first shot was even fired. There was an intention on the part of all the gunmen that someone in the other gang was going to be shot dead. That in my mind is a planned murder although a particular victim wasn’t specifically chosen to be killed.

The young man was not merely returning the fire initiated by the northbound shooter. He intended to kill him. He had the option of fleeing the scene but instead he chose to shoot it out with the northbound shooter.

He and his gang were looking for trouble and intended not to back away if they met with any resistance. He and his gang left the Foot Locker before the northbound shooter had and congregated on the sidewalk close to the door of the Foot Locker as if waiting for someone to exit the store.

A reasonable jury could conclude, based on the northern shooter’s conduct; that the northbound shooter expected the young man’s gang to be outside the store and was issuing or accepting a challenge to engage in a gun battle right then and there.

He and others in his gang did not run when the northbound shooter flashed his gun; rather, they stood their ground and quickly opened fire. It was then that the gang shootout followed.

A reasonable jury could infer from this reaction that the young man and his cohorts anticipated the gun battle and had decided to remain and participate in the gun battle. On this interpretation of the evidence, the firing of the first shot was simply a product of which shooter had the quicker reactions.

Let me give you another scenario of a similar situation that might also explain what I have just said. The causal responsibility of the participants in the car race is best described in this way.

‘Those at risk from the unreasonable and unjustified danger of an escapade of competitive driving, whether a spontaneous or planned event, include the occupants of other vehicles, cyclists, pedestrians, passengers in the racers’ autos, and the co-participants themselves. There is one danger. Each driver bears equal responsibility for its continued life span subject to withdrawal or an intervening event. As each driver in effect induces the other to drive in an unlawfully unsafe manner, each is taken to assume any consequential risk objectively within the ambit of the danger created and therefore is equally responsible for the death of anyone, be it a driver or spectator or innocent bystander.

For example, in a racing case, Driver A and Driver B may be racing together along crowded streets, with each driving recklessly trying to beat the other. If Driver A strikes a pedestrian, thereby directly causing her death, Driver B, as a participant in the race, can also be held to have caused her death. Driver A’s striking of the pedestrian can be seen not as an independent act but as a part of the joint action (racing on a public street) that resulted in the death of the pedestrian.

It follows that when gunmen from two gangs plan to shoot it out with one another on a public street, they are equally responsible for what happens to innocent bystanders if any of them are shot.

The question facing the Court of Appeal that heard this case was; should the young man be committed to trial on a charge of murder or manslaughter?

Let me explain the difference between second degree murder and manslaughter. Section 231.(7) of the Criminal Code of Canada states that all murder that is not first degree murder is second degree murder. First degree murder is murder that is planned ahead of time and murder in the second degree is murder that is done on the spur of the moment without any care whether or not the person dies.

Section 232. (1) states that culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

As an example, if someone was beating you to a pulp and you pulled out a large knife and knifed your attacker to death, the charge would be reduced to manslaughter.

I know what you are thinking. You would be defending yourself so why should you be charged with anything? The reason is that you have no right to be carrying a large knife with you in the first place unless you are in a forest camping or hunting.

The preliminary inquiry judge found that the young man’s committal for second degree murder was justified under four sections of the Criminal Code, namely: s. 21(1)(b), s. 21(2), s. 229(b) and s. 229(c). I will describe these sections.

s. 21.(1) Every one is a party to an offence who
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew … that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

The northbound shooter’s liability for that murder rests on section 229(b). According to the Crown, the northbound shooter shot and killed Ms. Creba, intending to shoot and kill the young man. To establish the northbound shooter’s liability for murder under that section, the Crown would have to show that the northbound shooter fired his gun intending to kill the young man.

It does seem strange that the young man should somehow be said to have aided and abetted a murder in which the criminal intent of the northbound shooter was to kill the young man. There is no evidence that the young man did anything with the intention of helping or encouraging the northbound shooter to murder him.

Section 21(2) expressly requires a common intention between the person who actually commits the crime and the person who is rendered liable for that crime under s. 21(2). The common intention must be “to carry out an unlawful purpose” and “to assist each other therein”. Section 21(2) speaks to situations in which two individuals pursue a common unlawful object together and one of them commits an offence other than the common unlawful object in the course of pursuing that common purpose. In such circumstances, the party to the initial common unlawful purpose will sometimes be held criminally responsible for the crime committed by his joint venturer in pursuit of their shared common purpose.

There have been instances when two men committed a robbery and one of them was shot dead by the police and the other robber was held responsible for the dead man’s demise. I won’t go into these cases because of time and space.

The young man’s purpose was to kill the northbound shooter and the northbound shooter’s purpose was to kill the young man – hardly a common intention! Nor does the evidence provide any support for a finding that the young man and the northbound shooter shared an intention to assist each other in the achievement of some unlawful purpose. Their conduct suggests the antithesis of mutual assistance. They were at odds with each other’s purpose.

Section 229 (c) defines culpable homicide as being murder where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

What this clearly means is that the acts of the offender that caused the death must have been done for the purpose of an ‘unlawful purpose’. It is well established that s. 229(c) contemplates some act or conduct by the accused that had been done to bring about some further unlawful object other than the injury that caused the death. Put another way, the unlawful purpose must be a different purpose than the assault upon the deceased that gave rise to the charge under s. 229(c). The unlawful purpose must have been a manner of conduct that, if prosecuted fully, would amount to a serious crime, that is an indictable offence showing criminal intent on the part of the accused.

An example of this would be when a person robs a store (an indictable offence) and he pulls his gun out and shoots at the wall to scare the people in the store and a shopper is accidentally shot and killed by the robber.

The mens rea (criminal intent) requirement in s. 229(c) is that the offender knows that the act or acts that are done for the purpose of the unlawful act is likely to cause death, notwithstanding he desires to effect his act without causing death or bodily harm to any human being. This creates a requirement for the subjective foresight of death by the offender. In other words, when a man with a loaded gun goes into a store with the purpose of robbing it and he accidentally fires it and a bullet from the gun hits a shopper and kills him, he can be convicted of second degree murder.

It follows that when the young man brought a loaded gun with him to a busy street, he knew that if he confronted a member of another gang, that other gang member would probably fire his gun at him, and that as a result, an innocent bystander might be struck by a stray bullet and killed.

The Ontario Court of Appeal concluded in part, that viewed from the Crown’s perspective, the picture that emerged was that two rival factions engaged in a frenzied shootout on a downtown Toronto street teeming with people– culminating in the tragic death of Ms. Creba. With that as the scenario upon which the applicability of s. 229(c) had to be considered, the Court believe that the young man could be convicted of murder under that provision if a jury was satisfied that he: for a unlawful object – killing the northbound shooter; did anything – willingly engaged in a frenzied shootout, discharging his firearm numerous times into a busy street teeming with people; that he knew that such action on his part was likely to cause the death of a human being (other than his intended target) – discharging his firearm numerous times into a street filled with people; and as such, caused the death of a human being – by substantially having contributed to Ms. Creba’s death by engaging in a mutual gunfight.

In my respectful view, that brings the young man’s actions within the four corners of section 229(c).

Although the young man intended no harm to Ms. Creba since she was not the target of his unlawful object; the northbound shooter was. In carrying out his unlawful object, the young man engaged in a dangerous act – a frenzied shootout in which he fired his gun numerous times into a crowded street teeming with people. Leaving aside any defences that might be available to him, by engaging in the shootout, the young man had to know that someone other than the northbound shooter was likely to die.

Here is an example that puts emphasis on what I am saying.

Twenty-three-year-old Craig Patrick was recently found guilty in a 1999 shooting that killed a three-year-old girl and wounded her father. It was his intention to kill the child's father because the gunman was pistol-whipped earlier by the child's father. When the gunman fired his gun into the car, he accidentally shot the girl to death and wounded her father. For this, he was convicted of first degree murder for killing the child and sentenced to a minimum of 25 years in prison. He was also sentenced for the attempted murder of the father. Even though he didn't intend to harm the girl, he killed her because when he fired his gun, it was done in a manner in which he didn't care what the consequences to the girl might be. It was reckless indifference.

For the reasons I have stated, the young man is facing a trial of second degree murder for the shooting of 16-year-old Jane Creba. He also faces six attempted murder charges also.

He was 17 years of age at the time of the shooting and the trial judge can try him as an adult or alternatively, try him as a young offender. If he is tried as an adult and convicted of second degree murder, the maximum sentence of imprisonment he can get is only ten years. If he is tried as a young offender, the maximum time of imprisonment he can get is only four years. If he was eighteen years or older when the shooting took place, he could get 25 years in prison although considering the fact that he didn’t fire the fatal shot, that would be highly unlikely.

An innocent young woman died because these young gun-carrying thugs wanted to play like they were gangsters we see in the movies. A pox on the lot of them.
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NEW INFORMATIONThe Ontario Court of Appeal has reverse the decision of those to be tried for manslaughter. They are to be tried for second degree murder.