(1) Attempted Murder Using Firearm (2x);
(2) Aggravated Assault (2x);
(3) Pointing Firearm (2x);
(4) Discharge Firearm with Intent to Wound (2x);
(5) Unauthorized Possession of Firearm
The client, A.H., was charged with two counts of attempted murder with a firearm and related offences. The Crown alleged that the client was a gang member who approached two members of a rival gang and opened fire with a semi-automatic firearm severely injuring both victims.
The primary issue during the client's preliminary inquiry was identification. The client remained in custody throughout the proceeding.
As a result of a carefully designed defence strategy, the Crown ran into an evidentiary problem during the client's preliminary inquiry. The evidentiary problem was a hearsay evidence problem. The Crown attempted to have admitted in evidence, for the truth of its contents, a DVD recorded statement provided by the primary Crown witness who was one of the two aforementioned victims of the shooting and who had identified the client as the perpetrator of the shooting. The defence opposed the admission of the DVD recorded statement for the truth of its contents on the basis that it was hearsay. As a result, the preliminary inquiry Judge was required to determine whether the evidence met the requirement of necessity and the requirement of threshold reliability as required by a ruling of the Supreme Court of Canada in a case called R. v. Khelawon. The preliminary inquiry Judge found that although necessity was made out, threshold reliability was not made out despite the case being a "close call".
As a result of the ruling of the preliminary inquiry Judge, the client was discharged with respect to all of the charges which he was facing and he therefore walked out of the prisoner's box.
This was another tremendous victory for the defence. If the client had been found to be a member of a gang and found guilty of attempted murder, he would have faced a maximum sentence of life in prison without the possibility of parole for a period of 10 to 25 years and a minimum sentence of 5 years in prison for each of the 2 counts.