Paul McDermott

Sentencing decision arising from firearm and drug offences committed after the accused was assaulted by a group of men near a downtown intersection.

The court rejected asserted mitigating circumstances that the handgun had just been taken from a robber, that the conduct was materially connected to self-defence, and that the accused intended to surrender the weapon to police.

It found as an aggravating fact that the accused attempted to fire the handgun in a crowded public area while carrying cocaine for the purpose of trafficking, proceeds of crime, and prohibited ammunition, all while subject to a lifetime firearms prohibition.

Applying denunciation, deterrence, separation, rehabilitation, parity, and totality, the court imposed a global sentence of 6.5 years' custody less 484 days' pretrial credit, together with ancillary forfeiture, DNA, and lifetime prohibition orders.

The applicants sought certiorari to quash their committal to stand trial for first degree murder under s. 231(5)(e) of the Criminal Code.

They argued there was no evidence that the victim was killed while being forcibly confined or regarding the role each applicant played in the killing.

They also argued they were denied natural justice because the preliminary inquiry judge relied on post-offence conduct and specific medical evidence without giving them an opportunity to make submissions.

The Superior Court of Justice dismissed the applications, finding that the applicants were permitted to address the evidence and were not denied natural justice.

The court further held that even if there was a breach, the applicants suffered no prejudice because a committal was inevitable based on the pre-offence and post-offence circumstantial evidence, which was sufficient to permit a jury to infer a common intention and that each applicant played a substantial and integral role in the killing.