R. v. Chrétien et al., 2017 ONCJ 427 — Court of Justice | minicounsel

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

Date: June 19, 2017

Court File No.: Ottawa 16-RM2310

Between:

HER MAJESTY THE QUEEN

— AND —

DOMINIQUE P. CHRÉTIEN, JOHNNIE-DEAN LOCEY-DEROCHIE, CANDY L. LOCEY, and TODD S. TURNER

Before: Justice P. K. Doody

Heard on: May 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18, 29, 30, 31, 2017

Reasons for Judgment released: June 19, 2017

Counsel:

J. Semenoff and C. Lefebvre — counsel for the Crown
L. Shore and M. Johnston — counsel for the defendant Dominique P. Chrétien
M. Spratt — counsel for the defendant Johnnie-Dean Locey-Derochie
K. Pegg and M. Godoy — counsel for the defendant Candy L. Locey
R. Carew — counsel for the defendant Todd S. Turner

DOODY J.:

Part 1: Overview

[1] The Charges

The four defendants are charged with first degree murder of Dady Junior Jean on November 4, 2015. The Crown seeks committal of all four defendants on first degree murder.

(a) Positions of the Defendants

[2] Mr. Locey-Derochie's Position

Counsel for Mr. Locey-Derochie consents to committal on second degree murder only, contesting a committal on first degree murder. He submitted that while there is sufficient evidence to commit his client on murder, there is insufficient evidence to find that the murder was planned and deliberate.

[3] Ms. Locey's Position

Counsel for Ms. Locey consents to committal on manslaughter, contesting a committal on either first or second degree murder. She submits that while there is evidence that her client aided or abetted her son, Mr. Locey-Derochie, to commit the homicide, there is insufficient evidence to find that her client had the necessary mental state to be convicted of either first or second degree murder.

[4] Mr. Chrétien and Mr. Turner's Position

Counsel for the other two defendants contest committal on any charge. They submit that there is insufficient evidence to find that their clients either had the necessary mental state or had performed the necessary acts to be a party to culpable homicide.

(b) My Role as a Preliminary Inquiry Judge

[5] The Standard

This is a preliminary inquiry. My role is limited to, in the words of s. 548(1)(a) of the Criminal Code, determining whether "there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction".

[6] Limited Weighing of Evidence

This is an issue which severely constrains my discretion. I must decide whether a properly instructed jury, acting reasonably, could convict on the evidence adduced before me. If the evidence relied on by the Crown is circumstantial, I must weigh the evidence in a limited sense to determine whether the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence.

[7] Circumstantial Evidence

The Crown's case relies on circumstantial evidence to establish the necessary elements of first degree murder for each defendant. It rests on what is submitted are reasonable inferences which arise from facts upon which there is direct evidence.

Part 2: Facts Supported by Direct Evidence

[8] Approach to Factual Findings

It is necessary for me to set out the facts upon which there is direct evidence so that the reasonable inferences which arise from them can be understood. Where there is contradictory or ambiguous evidence, or evidence that requires knowledge of its source to be properly understood, I will describe or quote the evidence and include its source.

[9] Acceptance of Evidence

I do this with the caveat that I must accept the credibility of this evidence. I am not permitted to determine whether it is credible or reliable or is likely to be accepted by a reasonable jury. Where there is contradictory evidence or evidence capable of supporting more than one reasonable inference, I must take the Crown case at its highest.

(a) The Afternoon and Early Evening of November 14, 2015: Partying Between Ms. Locey and the Deceased, and Ms. Locey is Ejected from the Deceased's Apartment

The defendant Candy Locey was at the apartment of the deceased, Dady Junior Jean, at 340 Lacasse Street in Vanier along with Mr. Jean, the deceased's girlfriend Kelly Kitchen, and Byron Thistle, with whom Ms. Locey was in an intimate relationship. Also present for part of the time were three other men, friends of Mr. Thistle's. The group was drinking and some of them may have consumed some marijuana. This social gathering went on for several hours.

[11] Ms. Locey Leaves to Visit Another Apartment

Ms. Locey left the group on at least one occasion to go to an apartment on the ground floor of 349 Lacasse Street, a building across the street and down a bit from the deceased's building. This apartment was occupied by Isabelle Richards, with whom the defendant Todd Turner had been staying for a short period of time.

[12] Drug Transaction

Mr. Turner was using the apartment as a base from which to sell drugs. Ms. Locey purchased from and consumed some cocaine with Mr. Turner in that apartment on November 14, 2015.

[13] Departure of Mr. Thistle's Friends

Shortly before Mr. Thistle's three friends left the deceased's apartment, Ms. Locey and the deceased were speaking loudly to each other. Those three men left around 7:00 p.m., and Ms. Locey, the deceased, Ms. Kitchen and Mr. Thistle were in the apartment when they left.

[14] Altercation and Ejection

Ms. Locey and the deceased got into an argument, which went on for 10 to 15 minutes. Their voices were raised. The deceased was angry and loud. He asked Ms. Locey to leave. Ms. Locey would not leave. Both Ms. Locey and the deceased were on the floor in the apartment entrance, with the deceased on top. After Mr. Thistle pulled the deceased off Ms. Locey, she left.

(b) 7:25 to 7:54 p.m.: Ms. Locey is Upset, and Communicates with Mr. Turner and Mr. Locey-Derochie; Mr. Locey-Derochie Communicates with Mr. Chrétien

[15] Ms. Locey Enters 349 Lacasse

Ms. Locey walked across the street from the area of 340 Lacasse (the deceased's apartment building) and entered 349 Lacasse (Ms. Richards' apartment building) at approximately 7:25 or 7:26 p.m.

[16] Ms. Locey's Distressed State and Call to Her Son

While inside Ms. Richards' apartment at 349 Lacasse, Ms. Locey was upset. She told Mr. Turner that the deceased tried to do something to her, that he attempted to rape her and put her up against the wall. She was speaking in an aggressive voice, "kind of rude". Ms. Locey called her son Mr. Locey-Derochie, saying "my son always has my back." Ms. Richards testified that Todd agreed to this call.

[17] Ms. Locey's Urgent Tone and Request

She said to her son, in an aggressive kind of tone, that she needed him "ASAP" and words like "he is going to get it". During this conversation, Mr. Turner was sitting right next to her, "like he was on the phone with him but with the phone against her head – he was talking with her and him." Ms. Locey told her son that she needed him as soon as possible and continuously said "we're gonna get him get over here." Ms. Locey asked Ms. Richards for permission to have her son come to the apartment and she said he could.

[18] Phone Call Records (7:25 to 7:41 p.m.)

Ms. Locey made or received a number of phone calls between 7:25 and 7:41 p.m. The following chart sets out the times, the caller (or person associated with the phone), the recipient, and the length of the call:

Time	Caller	Recipient	Length
7:25:12 p.m.	Ms. Locey	Mr. Thistle	3 seconds
7:26:05 p.m.	Ms. Locey	613-265-5586 (unidentified, but listed as a frequent contact in Mr. Locey-Derochie's phone)	139 seconds
7:29:58 p.m.	Ms. Locey	Mr. Thistle	5 seconds
7:34:25 p.m.	Mr. Locey-Derochie	Ms. Locey	70 seconds
7:37:01 p.m.	Ms. Locey	Mr. Thistle	9 seconds
7:38:02 p.m.	Ms. Locey	Mr. Jean (the deceased)	5 seconds
7:38:30 p.m.	Ms. Locey	Mr. Thistle	81 seconds
7:39:20 p.m.	Mr. Locey-Derochie	Ms. Locey	4 seconds to voicemail
7:40:10 p.m.	Ms. Locey	Mr. Locey-Derochie	53 seconds
7:41:24 p.m.	Ms. Locey	Mr. Locey-Derochie	51 seconds

[19] Phone Call Records (7:42 to 7:53 p.m.)

Mr. Locey-Derochie made or received a number of phone calls or texts thereafter. The following chart sets out the same information for those calls as was done for the earlier calls involving Ms. Locey, and the indication "SMS" for texts.

Time	Caller or Sender	Recipient	Length or SMS
7:42:53 p.m.	Mr. Locey-Derochie	613-899-2021, the personal cellphone of Majd Sajadi, who drove Capital taxi 492	34 seconds
7:43:57 p.m.	Mr. Locey-Derochie	Phone shared by Mr. Chrétien and his partner, Shayanne Charlebois (hereafter "Mr. Chrétien", with the understanding that it was shared)	20 seconds
7:44:40 p.m.	Mr. Locey-Derochie	Ms. Locey	27 seconds
7:45:21 p.m.	Mr. Chrétien	Mr. Locey-Derochie	SMS
7:46:12	Mr. Locey-Derochie	Mr. Chrétien	SMS
7:46:13 p.m.	Mr. Locey-Derochie	Mr. Chrétien	SMS
7:46:34 p.m.	Mr. Locey-Derochie	Mr. Chrétien	SMS
7:46:35	Mr. Locey-Derochie	Mr. Chrétien	SMS
7:46:56 p.m.	Mr. Locey-Derochie	Mr. Chrétien	SMS
7:46:57 p.m.	Mr. Locey-Derochie	Mr. Chrétien	SMS
7:47:17 p.m.	Mr. Chrétien	Mr. Locey-Derochie	SMS
7:48:40 p.m.	Mr. Locey-Derochie	Mr. Chrétien	41 seconds
7:49:47 p.m.	Mr. Chrétien	Mr. Locey-Derochie	SMS
7:50:10 p.m.	Mr. Locey-Derochie	Mr. Chrétien	SMS
7:51:08 p.m.	Mr. Chrétien	Mr. Locey-Derochie	SMS
7:51:38 p.m.	Mr. Locey-Derochie	Mr. Chrétien	SMS
7:51:39	Mr. Locey-Derochie	Mr. Chrétien	SMS
7:52:03 p.m.	Mr. Chrétien	Mr. Locey-Derochie	SMS
7:52:34	Mr. Locey-Derochie	Mr. Chrétien	SMS
7:52:35	Mr. Locey-Derochie	Mr. Chrétien	SMS
7:53:18	Mr. Chrétien	Mr. Locey-Derochie	SMS
7:53:55	Mr. Locey-Derochie	Mr. Chrétien	18 seconds

[20] Ms. Locey Exits 349 Lacasse

At approximately 7:48 p.m. Ms. Locey exited from the rear of 349 Lacasse, walking between that building and its next door building 347 Lacasse and across the front of 347 Lacasse, north on Lacasse.

[21] Ms. Locey and Mr. Turner Return to 349 Lacasse

At approximately 7:51 p.m. Ms. Locey walked south on Lacasse with Mr. Turner, and both entered 349 Lacasse at approximately 7:52 p.m.

(c) 7:54 p.m. to 8:20 p.m.: Communications Among Some of the Defendants and Between Ms. Locey and Mr. Thistle and the Deceased; Mr. Locey-Derochie Hails Cab

[22] Events After 7:54 p.m.

After 7:54 p.m., the following events took place:

Time	Event
7:54:11 p.m.	Mr. Turner called Mr. Locey-Derochie for 39 seconds
7:55:19 p.m.	Ms. Locey called Mr. Locey-Derochie for 35 seconds
7:57:58 p.m.	Ms. Locey called Mr. Thistle for 3 seconds
7:59:38 p.m.	Ms. Locey called Mr. Thistle for 2 seconds
8:00:16 p.m.	Mr. Locey-Derochie called 613-899-2021, the personal cellphone of Majd Sajadi, who drove Capital taxi 492, for 19 seconds
8:01:50 p.m.	Mr. Locey-Derochie entered taxi 492 in the area of Somero Private, his residence
8:02:55 p.m.	Mr. Locey-Derochie called Mr. Chrétien for 66 seconds
8:04:40 p.m.	Ms. Locey called Mr. Thistle for 4 seconds
8:12:15 p.m.	Ms. Locey called Mr. Thistle for 90 seconds

[23] Mr. Jean and Mr. Thistle at Mr. Bisson's Apartment

After Ms. Locey left Mr. Jean's apartment, Mr. Jean and Mr. Thistle went to the apartment of Alain Bisson, who lived one floor below Mr. Jean, on the ground floor. Mr. Bisson was there. They drank and listened to music. Ms. Locey called Mr. Thistle a number of times. She told Mr. Thistle to come outside. She asked him to pass the phone to Mr. Jean. He spoke to her. Both Mr. Jean and Ms. Locey sounded angry. Mr. Thistle, who gave this evidence, testified that he could not hear what either Mr. Jean or Ms. Locey said. He also testified that this phone call did not cause Mr. Jean to do anything.

[24] Timing of Ms. Locey's Call to Mr. Jean

As explained below, Ms. Lacey made phone calls to Mr. Thistle at 8:04:40 p.m. (for 4 seconds) and 8:12:15 p.m. (for 90 seconds). Thereafter, she made no more phone calls to Mr. Thistle that evening. He called her for 14 seconds at 8:25:54 p.m. If Ms. Locey spoke with Mr. Jean after calling Mr. Thistle's phone long enough for the phone to have been passed to him by Mr. Thistle, it is a reasonable inference that it was on the 90 second call at 8:12:51.

[25] Mr. Jean's Reaction to Phone Call

While Mr. Jean was talking to someone on the phone in Mr. Bisson's apartment, Mr. Jean said that he was going to call Candy to get "him" [1] out of there because "he did not want no trouble". Mr. Jean and Mr. Thistle went into the hallway and Mr. Jean continued the phone conversation. Mr. Jean said something about a shotgun. Then the phone call stopped. Mr. Jean looked at Mr. Thistle and said "OK I am going outside to deal with that – I am going to deal with this."

[26] Deceased's Phone Records

The only communication between any of the defendant's phones and Mr. Jean's phone was a call at 8:19:41 p.m. from the deceased to Ms. Locey which lasted 60 seconds. There was no evidence about who Mr. Jean was speaking to at the time of the conversation set out in the preceding paragraph. Mr. Jean's cell phone records were not in evidence.

[27] Timing of the Shooting

Mr. Bisson testified that about 10 minutes elapsed from the time when Mr. Jean stepped outside his apartment to continue a phone call until he heard what he described as two shots. As will be seen, the shot occurred at approximately 8:31 p.m., 11 or 12 minutes after the 8:19:41 phone call from Mr. Jean to Ms. Locey and 18 minutes after the 8:12:51 call from Ms. Locey to Mr. Thistle.

(d) 8:18 to 8:29 p.m.: Mr. Locey-Derochie's Cab Picks Up Mr. Chrétien, Mr. Chrétien Gets Duffel Bag Which Contains Weapon, and All Four Defendants Meet at 349 Lacasse

[28] Events After 8:18 p.m.

After 8:18 p.m., the following things happened:

Time	Event
8:18:30 p.m.	Taxi 492 was in area of Borthwick Avenue, south of Montreal Road, near the apartment Mr. Chrétien shared with Ms. Charlebois
Evening of Nov. 14, 2015	Mr. Locey-Derochie rang the buzzer at the apartment Mr. Chrétien shared with Ms. Charlebois. Mr. Chrétien let him in. He did not stay long. He asked Mr. Chrétien to go get his bag of clothes at Mr. Chrétien's father's place. Mr. Chrétien replied that he did not want to, but then agreed. Ms. Charlebois did not want Mr. Chrétien to leave. Mr. Chrétien left with Mr. Locey-Derochie after telling Ms. Charlebois that he had to go get Mr. Locey-Derochie his bag of clothes.
8:18:10 [2] p.m.	Mr. Chrétien entered taxi 492
8:16:00 p.m.	Ms. Locey called Mr. Locey-Derochie for 9 seconds
8:19:41 p.m.	Mr. Jean (the deceased) called Ms. Locey for 60 seconds
8:22:04 p.m.	Mr. Chrétien left taxi 492
8:22:15 [3]	Taxi 492, with Mr. Locey-Derochie (identified in photo of cab interior by Ms. Richards) and Mr. Chrétien as passengers, was in vicinity of Hannah Street, south of Deschamps St., near Mr. Chrétien's father's house
8:24:18 p.m.	Mr. Locey-Derochie called Ms. Locey for 27 seconds
8:24:34 p.m.	Mr. Chrétien re-entered taxi 492, with a bag similar to a duffle bag. Mr. Chrétien gave a statement to police in which he admitted that he picked up the bag from the shed behind his father's house, and that the bag was pink in colour. He also said in the statement that Mr. Locey-Derochie told him, in the cab, that "he had to take care of something between - that happened between Junior [Mr. Jean] and his mom", and that Mr. Locey-Derochie wanted Mr. Chrétien to get the bag because he knew Mr. Chrétien's father was sleeping and he did not want to wake him and get caught taking the bag himself. [4]
8:25:54 p.m.	Mr. Thistle called Ms. Locey for 14 seconds
8:27:01 p.m.	Taxi 492 was on Lacasse, between Richelieu and Frontenac Streets, about two blocks north of 340 and 349 Lacasse
8:27:08 p.m.	Mr. Locey-Derochie called Ms. Locey for 22 seconds

[29] Arrival at 349 Lacasse

At 8:27 p.m. [5], a car arrived at 349 Lacasse. Two individuals exited.

[30] Entry into Ms. Richards' Apartment

Mr. Locey-Derochie and Mr. Chrétien got out of a taxi at 349 Lacasse, with Mr. Locey-Derochie leaving the cab from the front and Mr. Chrétien from the rear door. Mr. Locey-Derochie took the bag into the apartment building. Ms. Richards let them into the apartment building by the front door and the three of them went into the apartment. Ms. Richards went to the bed, which was on the living room floor, and attempted to quiet a dog which she was looking after.

[31] Ms. Locey Greets Her Son

Ms. Locey gave her son, Mr. Locey-Derochie, a hug. Ms. Locey told Mr. Locey-Derochie that Mr. Jean had tried to rape her, that he had tried to mess with her.

[32] Firearm Removed from Bag

While Mr. Locey-Derochie was standing in the doorway, he opened the pink Adidas bag he had carried into the apartment and pulled out a firearm. Mr. Chrétien was right beside him when he did this. The firearm was about one foot in length. The bag was 2 ½ to 3 feet long – a "large duffel bag size". He put the firearm in his jacket.

[33] Ms. Richards' Observations of Apartment Layout

The evidence of Ms. Richards is important, particularly to Mr. Turner's position. She testified that after Mr. Locey-Derochie and Mr. Chrétien had entered the apartment and Ms. Locey had hugged her son, Ms. Locey returned to the living room (which was being used as a bedroom). Mr. Locey-Derochie and Mr. Chrétien stayed in the doorway. There was a wall between the doorway and the kitchen (which was open to the living room) which partially blocked the view of the door from some of the living room/kitchen area.

[34] Mr. Turner's Position in Apartment

Mr. Turner did not go to the door when the two men entered; he continued to work on drug packaging and sitting on the bed. Ms. Richards was also on the bed with the dog, towards the back of the bed near the wall and a window.

[35] Ms. Richards' Testimony in Chief

Ms. Richards gave the following evidence in examination in chief:

Q: What happens in the apartment?

A: They walk in the door and me, I continue doing what I was doing, I was taming my dog she wouldn't stop barking and Cocaine Candy and Todd and JD and his friend they were talking I wasn't really in the conversation but I noticed a pink Adidas bag with JD and JD pulled out a gun.

Q: Where were you when you were taming your dog at this point?

A: I was on my bed but closer to the wall by the pillows while Todd and Candy were closer to the end of the bed closer to the front door and JD.

Q: From where you are on the bed, can you see the front door of your apartment?

A: Yes

Q: Okay. And when you are taming your dog, where are JD and his friend?

A: Still in the front doorway.

Q: Is the door open or shut.

A: Shut. It always slams shut.

Q: And you mentioned at one point Candy gave him a hug.

A: As soon as he came in the door.

Q: Is it afterwards that she goes on to the bed?

A: Yeah.

Q: Okay. Do you recall any of the conversation happening at this point?

A: Just briefly. She did mention that he tried to rape her against the wall and … I was speaking about Junior by the way Junior tried to rape her she was saying and she was all upset and they weren't there very long

Q: Where is Candy when she is saying these things.

A: Sitting on the end of my bed.

Q: And is everyone else in the same position you said already that Todd is on the bed and the others are at the door?

A: Yes.

Q: How far is the end of your bed to the door? How many feet?

A: Maybe like 3 people away

Q: like the length of three people like laying down you mean?

A: No, like standing up. It is very close.

Q: So Candy mentions that Junior tried to rape her and pin her to the wall. Do you remember her saying anything else?

A: No, just that … let's go get him.

Q: Does anyone do you remember anyone else saying anything at that point?

A: No.

Q: And what is her mood like when she is saying this like

A: Like all adrenalin pumped up.

Q: And can you tell who she is saying this to?

A: JD.

Q: Is there a reaction from anyone?

A: Not really, they were all just pretty basic. JD had no problem pulling the gun.

Q: They were all pretty much basic?

A: Like normal face.

Q: And when you say he had no problem pulling out the gun what do you mean by that?

A: Like he just pulled it out no problem. Had no problem showing anyone.

[36] Ms. Richards' Cross-Examination

In cross-examination she gave the following evidence:

Q: From the living room where the bed what we are talking about is you might see the doorway but what you'd see would depend where you are within the bedroom because of the angle.

A: Yes

Q: Right. Um and on exhibit 35 you have marked that Todd was up against the wall.

A: Okay.

Q: But that is not what you have testified to you said that you were up against the wall.

A: Yes.

Q: So in fact what you have marked on exhibit 35 is not the correct position of the bodies.

A: No.

Q: You agree with that

A: Yes I agree with that

Q: You just realized that now.

A: Yes.

Q: OK. So does that maybe explain because I don't know maybe it is just your memory of it you were under the influence at the time but …

Q: Could be my memory of it yes.

Q: Your memory of it.

A: Yes.

Q: Um there could be some uncertainty of where you were in the lineup of the bodies on the bed.

A: Yes.

Q: And of course there was no mention of the dog being somewhere.

A: No.

Q: But the dog was somewhere.

A: Of course.

Q: Would it be fair to say that when you are on the bed and we are probably talking less than a minute at this point by the time they come in, greeted at the door, you get the dog down, and we know they are leaving shortly after, we really shrunk down the time that they are in the place, JD and his friend.

A: Yes.

Q: And while they are at the door although you say you can see them at the door,

A: Yes.

Q: Todd might not have the same view as you it is not the same angle.

A: No.

Q: He might not have that same view depends on the position on the bed.

A: Yes.

Q: And while they are at the door JD and Candy sorry JD and his friend there is some conversation between you and Todd.

A: Yes.

Q: Because it may have been in that period he may have said to you I know and you know, that is Candy's son.

A: Yes.

Q: All right. And he may very well have been looking to his left to talk to you because you are up by the wall and he is looking at you and he is at the end of the …

A: Yes.

Q: So his attention isn't necessarily focused on JD and the friend at the door.

A: Not necessarily, no.

Q: And, of course, the angle may not even give him your view.

A: Hm hm.

Q: Right. Now you stated that when the gun came out JD took it out that was very quick also right.

A: Yes.

Q: And then he made a movement with it.

A: Yes

Q: And it was put right back in the bag.

A: No, it was put in his coat.

Q: In his coat right, and it was hidden.

A: Yes.

Q: Very quick.

A: Yes.

Q: And correct me if I'm wrong, you don't know where the bag was at that point or do you?

A: He set it on the floor in front of him.

Q: Okay but where was it when the gun… you saw him take it out.

A: Yes I did.

Q: OK. And he didn't say anything about the gun at that time.

A: No.

Q: No one said anything.

A: No.

Q: Like no one said made an expression like ooh or what or …

A: No.

Q: Nothing was said.

A: Nothing was said.

Q: So although you may have seen that movement you don't actually know if Todd saw that.

A: I don't know.

[37] Mr. Turner's Warning to Ms. Richards

Ms. Richards also testified that when Mr. Locey-Derochie and Mr. Chrétien were in the doorway with Ms. Locey, Mr. Turner pulled her aside. She was standing on top of her bed. He told her in her ear "what you are going to see is going to reflect on you" or words to that effect. He said this after the gun was pulled out. He said nothing else.

[38] All Four Defendants Leave Apartment

After Mr. Turner said this, all four defendants left the apartment. All four defendants were in the apartment together for a very short time.

[39] Apartment Doors

Ms. Richards testified that there was a front and back door to her apartment. The lock on the front door was broken. The back door locked automatically when it was closed. She did not have a key for it. Sometimes she propped it open when she went out the back door for a smoke.

[40] Ms. Richards' Impression

Ms. Richards also testified that when the four defendants were in her apartment, she thought that they were going to go across the street and beat the deceased. She said she could "feel the vibes". She also testified that, at that time, she heard nothing to indicate that anything other than a beating was going to happen.

[41] Mr. Chrétien's Statement to Police

In his statement to the police [6], Mr. Chrétien said that after he and Mr. Locey-Derochie entered Ms. Richards' apartment, Mr. Locey-Derochie was "pissed" at his mother, Ms. Locey. He said that Mr. Locey-Derochie had been "pissed off" in the cab as well. He said Mr. Locey-Derochie was upset because Mr. Jean had done something to his mother, and he was arguing with his mother, "freaking out on her". Ms. Locey told her son that Mr. Jean and Mr. Thistle beat her up and robbed her.

(e) 8:29 p.m.: The Four Defendants Leave 349 Lacasse and Go to 340 Lacasse

[42] Video Evidence of Departure

A video shows four persons leaving 349 Lacasse by the front door, at 8:29:11 p.m., (plus or minus 59 seconds), and 1 minute and 27 seconds after Mr. Locey-Derochie and Mr. Chrétien had arrived. They walk in a line, one behind the other, across the street.

[43] Separation into Two Groups

They crossed Lacasse and broke into two groups, with one pair going behind 344 Lacasse and the other pair walking in a northerly direction on the west side of Lacasse, heading toward 340 Lacasse. The video shows the person identified by Crown counsel as Mr. Chrétien to be more than two car lengths behind Ms. Locey at 8:29:54 (plus or minus a minute) when the persons leave the camera's view (clip 8 from camera at 345 Lacasse).

[44] Mr. Thistle's Observations

Mr. Thistle testified that after Ms. Locey spoke to him on the phone, he went outside as she had asked him to. He saw Ms. Locey and Mr. Chrétien in the driveway which runs along the north side of 340 Lacasse. He testified that Ms. Locey was standing in front of the door to the building (which is halfway along its north side) and Mr. Chrétien was about 5 feet closer to the road.

[45] Mr. Thistle's Conversation with Mr. Chrétien

He said he spoke with Mr. Chrétien, saying "what the fuck?" to which Mr. Chrétien replied "Byron man". This prompted Mr. Thistle to say "what the fuck?" again, to which Mr. Chrétien did not respond.

[46] "Let's Go" Statement

He testified that they said "let's go". When asked which of the two or both said that, he testified that they both did. In cross-examination, however, he testified that Ms. Locey said those words, and that Mr. Chrétien did not say anything.

[47] Mr. Thistle Walks Away

As a result of this request, he started walking north on Lacasse, towards Blake Street. He said that he then decided to return to 340 Lacasse to be with Mr. Jean.

[48] Mr. Thistle's Time Outside

Mr. Thistle testified that he said nothing to Ms. Locey. He said he was outside 340 "a few minutes".

(f) 8:31 p.m.: The Shooting

[49] Mr. Thistle Re-enters Building

Mr. Thistle testified that he went inside the building and saw Mr. Jean. Mr. Thistle testified he told Mr. Jean he was going home and left the building. Mr. Jean followed him.

[50] Mr. Thistle Exits Building

Mr. Thistle testified that when he came outside just before the shooting, both Ms. Locey and Mr. Chrétien were gone.

[51] Mr. Jean Exits Building

When Mr. Jean came out of the building, he started yelling. He walked quickly to the rear of the building.

[52] The Shooting

Mr. Thistle testified that he saw a group of people, who had been slightly around the corner of the building, come up to Mr. Jean when he was between the back of the building and a garage. Two of them held Mr. Jean by the arms. The firearm was pushed right up against his back, touching him. Mr. Thistle said he saw him get shot in the lower back. Mr. Jean was facing away from the apartment building when he was shot. He did not see anyone stab Mr. Jean in the leg.

[53] Mr. Thistle Recognizes Mr. Locey-Derochie

Mr. Thistle testified that Mr. Jean then walked up the driveway from where he had been shot and then died. A group of five people came from the rear of the building and walked by him. Mr. Thistle was standing on the north side of the driveway, where it joins the sidewalk along Lacasse, about fifty feet from the rear of the building. He recognized only one of the people walking by him – Mr. Locey-Derochie. He was holding a firearm which he described as a "shotgun rifle" about 3 or 3 and a half feet in length.

[54] Mr. Thistle's Observations of Other Defendants

He testified that as far as he knew, Ms. Locey and Mr. Chrétien were not in the group. He never saw Mr. Chrétien again.

[55] Mr. Chrétien's Account of the Shooting

In his statement, Mr. Chrétien said that after he left the apartment he saw Mr. Thistle arguing with Ms. Locey. He heard a bang and turned and saw Mr. Locey-Derochie shoot Mr. Jean from 2 to 3 feet away and then run down the driveway beside 340 Lacasse. [7]

[56] 911 Call

Mr. Thistle testified that he called 911 30 seconds after Mr. Jean was shot. The 911 call was made at 8:32.

(g) 8:32 p.m.: The Defendants Leave the Scene of the Shooting; Ms. Locey, Mr. Locey-Derochie, and Mr. Turner Return to Apartment at 349 Lacasse

[57] Mr. Chrétien Flees

Mr. Chrétien said in his statement that after he saw Mr. Locey-Derochie shoot Mr. Jean, he ran down Lacasse Street.

[58] David Leclair's Observations

David Leclair works at a convenience store at 335 Lacasse, about 8 lots north of 340 Lacasse and on the opposite (east) side of the street. He was on the sidewalk outside the store having a cigarette when he heard arguing coming from the area of Mr. Jean's apartment building. He looked down the road, and saw four people arguing in front of 340 Lacasse. He could not identify any of them. Nor could he recognize any voices.

[59] Gunshots Heard

He then heard a shot. He described it as a "small bang" and when asked how many shots he heard, he said "I think two". He has heard gunshots before and he described the noise as probably coming from a small caliber firearm.

[60] Three People Running

After he heard the shot he saw three people running across Lacasse Street from west to east (i.e. from the side on which 340 Lacasse was located to the side on which 349 Lacasse was located). He saw a fourth person, who he described as a clean cut man in his twenties with brown or black hair, who was probably white, running from the scene of the argument down Lacasse Street towards him and then past him, continuing north on Lacasse Street.

[61] Video Evidence of Escape

A video which shows Lacasse Street and the sidewalk in front of the convenience store shows Mr. Leclair pacing the sidewalk, facing north. He turns and looks south down Lacasse at 8:31:01 p.m. [8] Mr. Leclair testified, when the video was played in court, that he turned when he heard the argument. The video then shows what could be 3 people (although the figures are very hard to see because of the distance from the camera and the poor resolution) running east across Lacasse at 8:31:06 p.m. A person can be seen running north on Lacasse. That person crosses Blake Street, about halfway between 340 Lacasse St. and the convenience store, at 8:31:13 p.m. The person runs past Mr. Leclair, on the opposite side of the street heading north, at 8:31:19.

[62] Video Evidence of Return to 349 Lacasse

The same video clip which showed the four individuals leaving 349 Lacasse in a line at 8:29:11 p.m. shows three dark blips moving east across Lacasse Street from approximately the area of 340 Lacasse to approximately the area of 347 Lacasse 1 minute and 40 seconds later, at 8:30:54 (plus or minus 59 seconds).

[63] Additional Video Evidence

Another video camera's footage shows 4 individuals crossing Lacasse Street in a westerly direction from the area of 349 Lacasse at 8:29:30 and then 3 individuals running east across Lacasse Street one minute and 37 seconds later, at 8:31:37 (plus or minus 59 seconds). Two of them can be seen running in one direction and the third veering off slightly to their right as they get to the east side of the street.

[64] Video Evidence Behind 345 Lacasse

A third video camera's footage shows two individuals running across the parking lot in front of 345 Lacasse 4 seconds later, at 8:31:41, and along the north side of the building. Ms. Richards identified the person in the rear as Mr. Turner. A camera between 345 and 347 Lacasse (i.e. on the north side of 347 Lacasse) shows the same two individuals running between those two buildings at 8:30:55 (plus or minus 59 seconds).

[65] Video Evidence Behind 347 Lacasse

A camera showing a deck at the rear of 347 Lacasse shows the same two individuals running up and jumping off the deck, headed in a southerly direction (i.e. toward 349 Lacasse), at 8:30:55 (plus or minus 59 seconds). Ms. Richards identified the person in the rear as Mr. Turner. The person in front is carrying a cylindrical object in his right hand.

[66] Mr. Turner's Hand Movement

When that person gets to the top of the deck, he turns around and looks at Mr. Turner, who can be seen moving his right hand up and down twice.

[67] Object Dropped and Recovered

When the person in front lands on the ground after jumping off the deck, he drops the object and picks it up.

[68] Video Evidence of Return to 349 Lacasse

A third person is seen running across the parking lot and down the south side of 347 Lacasse at 8:31:53. A camera between 347 and 349 Lacasse (i.e. on the south side of 347 Lacasse) shows a person, identified by Ms. Richards as Ms. Locey, running between those two buildings at 8:31:03 (plus or minus 59 seconds). That person gets to the rear of the buildings just before the two persons who had jumped the deck behind 347 can be seen arriving at the same spot. The three of them continue to the south, behind 349 Lacasse, at 8:31:06.

[69] Ms. Richards' Observations Upon Return

Ms. Richards testified that after the four defendants left her apartment at 349 Lacasse she went into the bathroom. Her dog started "going crazy" so she left the bathroom and looked out the window across Lacasse Street. She heard a shot and saw people running to the rear of 347 Lacasse. Mr. Locey-Derochie, Mr. Turner, and Ms. Locey came in the back door of 349 Lacasse and ran into her apartment. She estimated it was about five minutes since they had left.

[70] Defendants' Demeanor Upon Return

She said that when they came into her apartment Ms. Locey looked like she was in shock, with a red face, "all antsy sweating like she did not know what to do." Mr. Turner was the same way. She testified that she did not notice Mr. Locey-Derochie's reaction.

[71] Ms. Richards' Exclamation

Ms. Richards said that she "freaked out". She said "What did you do? I didn't think you guys were going to do that I thought you guys were just going to scare him." She said she was yelling this to all of them.

[72] Mr. Turner's Response

In examination in chief, she testified that they did not say anything in response. In cross-examination, she testified that Mr. Turner was as surprised as she was, and that he said "I can't believe it just happened".

[73] Firearm Secured

Ms. Richards testified that Ms. Locey came into the apartment with the pink Adidas bag. She grabbed the gun from Mr. Locey-Derochie and put it in the bag.

(h) 8:35 p.m.: Defendants Leave 349 Lacasse

[74] Defendants Depart

Ms. Richards said that she told them to all leave and they left together. In cross-examination, she testified that Mr. Turner stayed behind briefly to pack up some things and then he left.

[75] Ms. Locey Leaves with Bag

Ms. Richards testified that Ms. Locey took the bag with her when she left her apartment. Video camera footage shows a person leaving 349 Lacasse with a duffel bag which is pink or red in colour at 8:35:40, 4 minutes and 34 seconds after the three persons were seen running behind 349 Lacasse.

(i) Cause of Death

[76] Forensic Pathology Evidence

Forensic pathology evidence established that Mr. Jean died from a single gunshot wound to the right chest, with the bullet travelling through the right chest cavity, from right to left, downwards and from front to back. It also showed evidence of two fresh stab wounds in the hip area.

Part 3: The Law

(a) Murder and Manslaughter

[77] Definition of Culpable Homicide

Section 222 of the Criminal Code provides, in part:

222. (4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

[78] Definition of Murder

Section 229 provides, in part:

229. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death; or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

[79] First Degree Murder

Section 231 provides, in part:

231. (1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate.

(7) All murder that is not first degree murder is second degree murder.

[80] Meaning of "Planned and Deliberate"

The late Justice Gale gave the following explanation of the meaning of "planned and deliberate" in his charge to the jury in R. v. Widdifield (1961), 6 Crim. L.Q. 152, 153:

I think that in the Code 'planned' is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.

As far as the word 'deliberate' is concerned, I think that the Code means that it should also carry its natural meaning of 'considered', not 'impulsive', 'slow in deciding', 'cautious', implying that the accused must take time to weigh the advantages and disadvantages of his intended action. That is what, as it seems to me, 'deliberate' means.

[81] External Circumstances as Evidence of Planning and Deliberation

Justice Gale went on to charge the jury:

May I repeat again, gentlemen, that if you find that there was a murder, it is a question of fact for you as to whether the Crown has also proved it to be the result of planning and deliberation. Does the Crown show that in this case? Certainly there is no direct evidence to that effect that it was planned and deliberate. There is no evidence of any statements by the accused that he thought this all out, for example, and decided to kill Donna and that he had carried out the plan that he had settled upon after deliberation, but there may be external circumstances proved by the evidence from which you may infer the inward intention, that is, that his act was the result of planning and deliberation.

In some cases — cases that have nothing to do with this case — there is evidence, for example, of the attacker lying in wait for the victim to walk along and/or antecedent menaces by the attacker against the victim, or that he held grudges against the victim, or that he had come to form schemes to do the victim harm. Those are circumstances which might be considered in determining whether or not there was the state of mind in those accused persons to show that there was a plan and a deliberation on their part.

[82] Requirement for Prior Formulation of Scheme

As Watt J. held in R. v. Ayotte, [1998] O.J. No. 4700 at paragraph 64:

For there to be a planned and deliberate murder, there must be evidence that the murder was the result of a scheme or design that the accused had previously formulated or designed. The murder must be the implementation of that scheme or design. A murder committed on sudden impulse, without prior consideration, however intentional, is not a planned and deliberate murder.

[83] No Minimum Time Required

There is no requirement that a plan take hours or days to prepare. Although the time it takes to develop a plan is an important factor in deciding if a murder is planned, there is no minimum time required. A very simple plan can be formulated in a very short time. (R. v. Weese, 2010 ONSC 3589, [2010] O.J. No. 2651 at para. 17)

[84] Planning and Deliberation as Separate Elements

The elements of planning and deliberation, while both essential to first-degree murder, are also separate. Thus, there can only be an order to stand trial for first degree murder if the threshold test is met for both planning and deliberation, independently. (R. v. More, 1963 CanLII 79 (SCC), [1963] S.C.R. 522, R. v. Stevens (1984), 11 C.C.C. (3d) 518 at 538-539 (Ont. C.A.))

(b) Parties to Murder and Manslaughter

[85] Section 21(1) of the Criminal Code

Section 21(1) of the Criminal Code provides:

21.(1) Every one is a party to an offence who

(a) actually commits it;

(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 anyone of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[86] Actus Reus of Aiding or Abetting

The actus reus of aiding or abetting is doing something that assists or encourages the principal to commit the offence. To "aid" means to assist or help the person who actually commits the offence; to "abet" includes encouraging, instigating, promoting or procuring the crime to be committed. (R. v. Briscoe, 2010 SCC 13 (CanLII), [2010] 1 S.C.R. 411 at para. 14, citing R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825 at para. 26)

[87] Mere Presence Not Sufficient

Mere presence at the scene of a crime does not suffice to "aid" or "abet" but presence along with the cumulative effects of other facts, such as 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. (R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881)

[88] Mens Rea for Aiding or Abetting

The mens rea requirement for being a party by s. 21(1)(b) is that the Crown must prove that

(1) the defendant intended (but not necessarily desired) to assist the principal in the commission of the offence, and

(2) the defendant knew that the principal intended to commit the crime, although he or she need not know precisely how it will be committed. (Briscoe at paras. 16 and 17)

[89] Knowledge of Principal's Intent for Murder

Consequently, for a person to be guilty of murder as an aider or abettor, that person must have known that the principal had the intent required for murder under s. 229(a) – that the principal meant to cause death or meant to cause bodily harm that he or she knew was likely to cause death. (Briscoe, para. 7, citing R. v. Maciel, 2007 ONCA 196 at para. 88)

[90] Knowledge of Planning and Deliberation

For a person to aid in the commission of a first degree murder that was planned and deliberate, the Crown must prove that the person did something for the purpose of assisting or encouraging the principal in the planned and deliberate murder and that, when he rendered the assistance or encouragement, he knew that the murder was planned and deliberate. It is irrelevant whether the aider acquired that knowledge through actual involvement in the planning and deliberation or through some other means. (Briscoe, para. 17, citing Maciel at para. 89)

[91] Wilful Blindness

Wilful blindness – the term used to describe the situation where a person's suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries – equates with knowledge. Consequently, if the defendant is wilfully blind to whether the principal meant to cause death or bodily harm that he or she knows is likely to cause death, or whether the murder was planned and deliberate, he or she will be deemed to possess the necessary knowledge. A useful description of "wilful blindness" is "deliberate ignorance". (Briscoe at paras. 21 and 24)

[92] Requirements for First Degree Murder as Aider and Abettor

Consequently, for an aider and abettor to be guilty of first degree murder, he or she must:

(a) know that the principal intended to murder the deceased (or cause him bodily harm that he or she knew was likely to cause death);

(b) intentionally aid or abet the principal in doing so; and

[93] Requirements for Second Degree Murder as Aider and Abettor

For an aider or abettor to be guilty of second degree murder, he or she must

(a) know that the principal intended to murder the deceased (or cause him bodily harm that he or she knew was likely to cause death); and

(b) intentionally aid or abet the principal in doing so.

[94] Manslaughter by Aider or Abettor

Where the principal is guilty of murder, but the aider and abettor does not have the requisite mens rea because he or she did not know that the principal meant to cause death or meant to cause bodily harm that he or she knew was likely to cause death, the aider or abettor is guilty of manslaughter if he or she aided or abetted the unlawful act which caused death and

(a) the unlawful act which caused the death was inherently dangerous and harm to another which is neither trivial nor transitory was its foreseeable consequence (s. 21(1)(b) or (c)); or

(b) where a common unlawful purpose has been demonstrated and one party to the purpose has committed murder, the aider or abettor did not foresee the probability of murder but a reasonable person in all of the circumstances would have foreseen at least a risk of harm to another as a result of carrying out the common intention. (s. 21(2), R. v. Jackson, 1993 CanLII 53 (SCC), [1993] 4 S.C.R. 573)

(c) The Manner in Which I Must Deal with Circumstantial Evidence

[95] Limited Weighing of Circumstantial Evidence

As I indicated at the outset, I must decide whether a properly instructed jury, acting reasonably, could convict on the evidence adduced before me. If the evidence relied on by the Crown is circumstantial, I must weigh the evidence in a limited sense to determine whether the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence.

[96] The Arcuri Test

The Supreme Court of Canada explained this limited weighing of circumstantial evidence as follows in R. v. Arcuri, 2001 SCC 54:

The judge's task is somewhat more complicated where 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 advanced 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. This weighing, however, is limited. The judge does not ask 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.

[97] Taking the Crown's Case at Its Highest

In conducting this limited weighing, I am required to take the case for the Crown at its highest, meaning that I must accept the credibility of the evidence relied on by the Crown and assume the reasonable inferences from the primary facts that are most favourable to the Crown. If I decide that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, I must commit the defendants to trial.

[98] Competing Inferences

It is irrelevant that the evidence may also support inferences inconsistent with guilt. Evidence that is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, requires that the defendant be committed for trial. (R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130 at paragraphs 6-11, and cases cited therein)

[99] Field of Factual Inferences

As the Supreme Court of Canada explained in R. v. Cinous, 2002 SCC 29 at paragraph 91:

The judge does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence.

[100] Avoiding Speculation

In determining whether reasonable inferences could be drawn from the established facts, I must avoid speculation. An inference based on speculation is not reasonable. As Justice Ducharme noted, in R. v. Alexander, [2006] O.J. No. 3173 at paragraphs 21 to 23:

21 While the jurisprudence is replete with references to the drawing of "reasonable inferences," there is comparatively little discussion about the process involved in drawing inferences from accepted facts. It must be emphasized that this does not involve deductive reasoning, which, assuming the premises are accepted, necessarily results in a valid conclusion. This is because the conclusion is inherent in the relationship between the premises. Rather, the process of inference drawing involves inductive reasoning, which derives conclusions based on the uniformity of prior human experience. The conclusion is not inherent in the offered evidence, or premises, but flows from an interpretation of that evidence derived from experience. Consequently, an inductive conclusion necessarily lacks the same degree of inescapable validity as a deductive conclusion. Therefore, if the premises, or the primary facts, are accepted, the inductive conclusion follows with some degree of probability, but not of necessity. Also, unlike deductive reasoning, inductive reasoning is ampliative as it gives more information than what was contained in the premises themselves.

22 A good starting point for any discussion of inference drawing is the definition offered by Justice Watt:

An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances.

Equally important is Justice Watt's admonition that, "The boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a very difficult one to locate."

23 The process of inference drawing was described by Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.) as follows:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v. White (1994), 89 C.C.C. (3d) 336 at p. 351 (N.S.C.A.):

These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other.

[101] Inferences in Light of All Evidence

This process was much more succinctly described by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33 at paragraph 30:

The inferences that may be drawn from [factual observations] must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[102] Distinction Between Reasonable Inferences and Speculation

The distinction between reasonable inferences and mere speculation was explained by the Court of Appeal in Jackson at paragraphs 12 to 14:

12 The distinction between evidence that cannot reasonably support the inferences necessary to establish the Crown's case and evidence that can support competing inferences including an inference of guilt can be hopefully made clear with two examples using facts similar to this case. In the first case, assume that the Crown's evidence consists of testimony that "A" and "B" were in the room with the deceased immediately before he was killed. No one else was in the room, and there was no evidence of any joint enterprise between "A" and "B". On this evidence nothing points to "A" as opposed to "B" as the killer. It would be unreasonable for a jury to infer from "A's" presence in the room (the primary fact) the further fact that he was the killer. "A" must be discharged at the preliminary inquiry.

13 In the second example, assume again that "A" and "B" were the only people in the room with the deceased immediately before he was killed and that there is no evidence of joint enterprise. There was evidence that as the police arrived moments later, "A" was seen leaving the room with the weapon used to kill "X" secreted upon his person. There was also evidence that "B" had been involved in a loud verbal altercation with "X" immediately before the killing.

14 On this evidence, one could reasonably infer from "A's" presence in the room and his departure from the room immediately after with the weapon used to kill "X" in his possession, that "A" had killed "X". One might also infer based on "B's" presence in the room and the prior altercation with "X", that "B" had killed "X". On the evidence described in the second scenario the evidence supports two reasonable conclusions, one of which is that "A" killed "X". A preliminary inquiry judge would be required to commit "A" for trial.

[103] Hodge's Case Rule Not Applicable at Preliminary Hearing

Since this is the inquiry that must be undertaken, the rule in Hodge's Case, as explained by the Supreme Court in Villaroman, has no application at a preliminary hearing. The analysis described in that case of determining whether the defendant's guilt is the only reasonable inference which arises from circumstantial evidence, to be applied by the trier of fact, is irrelevant to the analysis which must be performed by a preliminary hearing judge. (Jackson at para. 15)

[104] Consideration of All Evidence

In engaging in the required inquiry, however, I must consider "the whole of the evidence", whether led by the defence or the Crown. Even though credibility considerations are the exclusive province of the trier of fact, I still must consider whether the evidence, if believed, could reasonably support a finding of guilt. (Arcuri, at para. 32)

[105] Cumulative Effect of Circumstantial Evidence

Furthermore, as Watt J. held in R. v. Gollogly, [1989] O.J. No. 3127:

It is the total and cumulative effect of the circumstantial evidence which must be measured against the standard of s. 548(1). A compartmentalized and isolated analysis of each strand or item of circumstantial evidence is not to be undertaken by the provincial court judge presiding at a preliminary inquiry. Provided the total and cumulative effect of the circumstantial evidence could found an inference of guilt, an accused must be ordered to stand trial.

Part 4: Analysis

(a) Mr. Locey-Derochie

[106] Concession on Second Degree Murder

Mr. Spratt, Mr. Locey-Derochie's counsel, concedes that the Crown has led sufficient evidence to justify his client's committal for trial on second degree murder.

[107] Basis for Second Degree Murder Committal

That was a reasonable concession. Mr. Thistle testified that he saw Mr. Jean shot (albeit in the back, something which was not possible from the forensic evidence) and then saw Mr. Locey-Derochie immediately leaving the scene of the shooting with the firearm in his hand. This clearly supports a reasonable inference that Mr. Locey-Derochie shot the deceased. Since it is a common sense inference, that a reasonable jury could draw, that one intends the natural consequences of one's actions, a jury could conclude that Mr. Locey-Derochie intended to kill Mr. Jean when he shot him.

[108] Defence Submission on Planning and Deliberation

But Mr. Spratt does not concede that the evidence supports a reasonable inference that the shooting was planned and deliberate. He submits that the only reasonable inference is that there was no plan and no deliberation. He notes that only approximately one minute and thirty seconds elapsed between the time the first occupant of the taxi entered the front door of 349 Lacasse to the moment the first person left the apartment building, and that was an insufficient time to plan anything more than the most rudimentary of confrontations. Ms. Richards' evidence does not support planning and deliberation inside the apartment – indeed, her evidence was that she thought that the group was going to confront Mr. Jean, not kill him. He submits that although there was a phone call between Mr. Jean and Ms. Locey that call is inconsistent with any notion of a plan, since Mr. Jean called Ms. Locey.

[109] Salient Facts Regarding Mr. Locey-Derochie

As I have said, I must consider all of the evidence as it affected Mr. Locey-Derochie. I have set out that evidence in detail. Its most salient parts (recognizing that in setting out this evidence, I am not indicating that I accept it as accurate or truthful, only that it could be accepted by a reasonable jury) are as follows:

(a) He had a motive for an animus against the deceased; he had been told by his mother before he called the cab (according to Ms. Richards) that "he was going to get it", that she needed him "ASAP" and that "we're gonna get him get over here" in an aggressive tone;

(b) There was an opportunity for him to plan the shooting:

(i) he spoke to his mother by cellphone 9 times between 7:34 p.m. (9 minutes after his mother had left the deceased's apartment having engaged in a physical fight with him) and 8:25 p.m., a 50 minute period;

(ii) he spoke to Mr. Chrétien's phone 3 times and communicated by text with that phone 17 times in the 10 minutes between 7:43 p.m. and 7:53 p.m.;

(iii) he spoke to Mr. Turner's phone at 7:54 p.m. for 39 seconds;

(iv) he called Mr. Chrétien's phone again at 8:02 p.m.;

(v) he was in a cab with Mr. Chrétien for 9 minutes between 8:18 and 8:27 p.m.;

(vi) he was inside Ms. Richards' apartment at 349 Lacasse with the other three defendants for about a minute and a half (a reasonable inference to make from the video evidence combined with Ms. Richards' evidence);

(c) he called a cab which picked up Mr. Chrétien and then stopped to allow Mr. Chrétien to leave and return with a duffle bag which contained a firearm;

(d) when he arrived at Mr. Chrétien's apartment to pick him up, he told him he wanted Mr. Chrétien to pick up a bag for him;

(e) the cab drove to Ms. Richards' apartment at 349 Lacasse, where Mr. Locey-Derochie and Mr. Chrétien left the cab;

(f) Ms. Locey told Ms. Richards that Mr. Locey-Derochie had arrived at her apartment and that she should open the door for him;

(g) he took the duffle bag into Ms. Richards' apartment, removed the firearm from it in the presence of everyone, and put it inside his jacket, with no comment being made by anyone when he did so;

(h) his mother then told him that Mr. Jean had tried to rape her and mess with her and said "let's go get him";

(i) Mr. Locey-Derochie and the others had "normal face" and Mr. Locey-Derochie had no problem pulling the gun "like he just pulled it out no problem";

(j) he walked across the street in a line with the other three;

(k) the four persons who walked across the street separated, with two going one way and two another;

(l) he was at the rear of the deceased's apartment building when the deceased came out of the door and went to where Mr. Locey-Derochie was, where the deceased was shot;

(m) Ms. Locey called Mr. Thistle and encouraged him to leave Mr. Jean, and continued that encouragement after Mr. Thistle had left the building (a reasonable inference of which is that she was attempting to remove him so he could not protect Mr. Jean);

(n) he walked away from the shooting scene with the firearm in his hand,

(o) he and Mr. Turner ran together with him holding the firearm [9], behind 347 Lacasse, met up with Ms. Locey, and ran into the back door of 349 Lacasse which had to be wedged open to avoid it locking.

[110] Reasonable Inference of Planning and Deliberation

In my view, a reasonable inference from all of these facts is that Mr. Locey-Derochie had planned and deliberated to kill Mr. Jean.

[111] Cumulative Effect of Evidence

This issue must be determined by considering all of the evidence, including his knowledge of an insult made by Mr. Jean to his mother and her exhortation to "get him"; the number of calls and texts among all 4 defendants over a short period of time following his being told this; his procurement of the firearm beforehand through Mr. Chrétien; his travelling with the firearm to Ms. Richards' apartment where his mother was; his mother's knowledge that he had arrived there before he entered; the removal and showing of the gun without comment, discussion or explanation by Mr. Locey-Derochie; the concerted action of the four individuals after leaving Ms. Richards' apartment; and the very rapid reunion of three of them at the same apartment. A jury could, in my view, reasonably come to the conclusion that this was "carefully thought out" and "considered" – that Mr. Locey-Derochie had planned to be where he was, just behind 340 Lacasse where he could see Mr. Jean exit the building, so that he could then shoot him with the firearm he had obtained shortly before.

[112] Evidence of Planning and Deliberation

This is the kind of evidence of which Justice Gale spoke in his charge to the jury in Widdifield – "evidence … of the attacker lying in wait for the victim to walk along and/or antecedent menaces by the attacker against the victim, or that he held grudges against the victim, or that he had come to form schemes to do the victim harm."

[113] Inductive Reasoning and Human Experience

There are other reasonable inferences which could arise from the evidence. Those include the inference that Mr. Locey-Derochie had planned only to confront Mr. Jean, and not kill him. It was submitted by defence counsel that this is the only reasonable inference which could arise from the evidence. In my view, this submission ignores the effect of inductive reasoning, as explained by Justice Ducharme in Alexander. It is the "uniformity of prior human experience" considered together with logic, and not logic alone, - or, as the Supreme Court of Canada put it in Villaroman, "all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense" which gives rise to the inference that Mr. Locey-Derochie's unlawful killing of Mr. Jean was intentional, planned, and deliberate.

[114] Fact-Specific Analysis

Defence counsel referred to a number of cases in which courts have held that no reasonable inference could arise of planning and deliberation. Any such analysis is necessarily fact-specific.

[115] Relevant Case Law

The two cases cited to me which are closest to this case on the facts are R. v. Adam, 2012 ONCA 582, affirming 2011 ONSC 7294, and R. v. J.B., 2012 ONSC 365.

[116] R. v. Adam

In Adam, Justice Molloy held, on a certiorari application, that the following facts gave rise to a reasonable inference of planning and deliberation: the defendant had animosity towards the deceased; there was no evidence that the defendant was with the deceased prior to the attack; the deceased appeared to have been taken by surprise when she was stabbed; the position of the wounds and other evidence made it likely that she was stabbed from behind; and it was a reasonable inference that the defendant brought the knife which caused the death to the office where the deceased was stabbed. In the Court of Appeal, Justice Rosenberg wrote on behalf of the Court that the combination of the evidence of a grudge held against the deceased, that it would be open to the trier of fact to find that the defendant had obtained the murder weapon some time before the attack on her, and the manner of the attack – not in the course of a struggle but while the deceased was on the telephone – gave rise to an available inference of planning and deliberation.

[117] R. v. J.B.

In J.B., Justice Dambrot held, on a certiorari application to set aside a discharge of the defendant who had been charged with first degree murder, that the following facts gave rise to a reasonable inference of not only the requisite intent for second degree murder but also of planning and deliberation such that a committal for first degree murder was required: the defendant and a co-accused confronted the deceased together; the co-accused pointed his gun at the deceased and said something; the deceased took flight and the defendant gave chase; the defendant tripped the deceased, causing him to fall face first on the street, and then stood back while the co-accused shot and killed the deceased.

[118] Cumulative Effect of Evidence

In both of these cases, the reviewing courts held that the preliminary inquiry judge committed jurisdictional error by failing to consider the whole of the evidence when determining what inferences could reasonably arise. As Molloy J. held in Adam:

It is not necessary that each piece of evidence be capable of supporting an inference of planning and deliberation on its own. What is required is that the evidence, viewed cumulatively, be capable of supporting such an inference.

[119] Opportunity to Plan and Concurrent Communications

Defence counsel also submitted that evidence of opportunity to plan is not, by itself, evidence of planning, as held by Platana J. in R. v. Perlett, [1999] O.J. No. 2190 at paragraph 25. But as the Court of Appeal implicitly held in R. v. Thomson, 2005 CanLII 8664 (ON CA), [2005] O.J. No. 1124, numerous phone calls between two defendants immediately prior to the attack, even when the contents are not known, are capable, when combined with other evidence, including evidence that the two defendants discussed hurting or killing the complainant, of supporting the inference that a defendant assisted a co-accused with jointly planning an attack. In my view, that is particularly so when the numerous telephone calls and text messages shortly precede actions taken in concert.

[120] Committal on First Degree Murder

Mr. Locey-Derochie is committed to trial on first degree murder.

(b) Ms. Locey

[121] Ms. Locey's Defence Submission

Ms. Pegg, Ms. Locey's counsel, submits that her client should be committed for trial on manslaughter, and discharged in respect of first degree murder and second degree murder. It is her submission that, while a reasonable inference from the evidence is that Ms. Locey wanted to extract some form of payback, to "lay a beating on Junior for how he had treated her", no reasonable inference could be made that she knew that Mr. Locey-Derochie would kill Mr. Jean, or cause him significant bodily harm which she knew would probably lead to death.

[122] Further Defence Submission

Ms. Pegg submits that there is no evidence that her client asked Mr. Locey-Derochie or anyone else to kill Mr. Jean, or to beat him to the point that he would die. She also submits that not only is there no evidence of an opportunity for deliberation or of planning to kill Mr. Jean; there is no evidence that Ms. Locey knew that her son intended to kill Mr. Jean or that she aided or abetted him to do so.

[123] Salient Facts Regarding Ms. Locey

The salient facts (for which there is direct evidence which a reasonable jury could believe) in respect of Ms. Locey, in addition to those I have set out in respect of Mr. Locey-Derochie, are:

(a) She was in an altercation with the deceased earlier that evening in which he was lying on top of her and following which she had been ejected from this apartment;

(b) She told Mr. Turner, in Ms. Richards' apartment before her son and Mr. Chrétien arrived, that Mr. Jean had tried to rape her and put her up against the wall and that her son "always has my back";

(c) She expressed no surprise when her son pulled the firearm out of the Adidas bag immediately upon arriving at Ms. Richards' apartment;

(d) Upon her son's arrival in the apartment, she said, in an angry voice, "let's go get him"

(e) In addition to the phone calls with her son set out at paragraph 18 above (in which she told her son, among other things, that he (meaning Mr. Jean) is going to get it), she called Mr. Thistle 8 times between 7:25 p.m. and 8:12 p.m., talking for 48 seconds at 7:29:58 p.m., and 90 seconds at 8:12:15 p.m.;

(f) She called Mr. Thistle while he and the deceased were in Mr. Bisson's apartment and told him to come outside; she asked Mr. Thistle to pass the phone to Mr. Jean and both she and Mr. Jean sounded angry during that call;

(g) Shortly before the shooting, she and Mr. Chrétien were in the driveway of 340 Lacasse when Mr. Thistle came out of 340 Lacasse alone; Ms. Locey was standing in front of the doorway to the building, with Mr. Chrétien closer to the road;

(h) Mr. Thistle and Mr. Chrétien had a brief monosyllabic conversation; following which both Ms. Locey and Mr. Chrétien said to him "let's go";

(i) As a result, Mr. Thistle walked north along Lacasse Street, but then changed his mind and returned to 340 Lacasse;

(j) On entering the building, Mr. Thistle saw Mr. Jean, told him he was going home, and left again, with Mr. Jean following him;

(k) Both Ms. Locey and Mr. Chrétien were gone when he exited the building;

(l) Mr. Jean then walked quickly to the rear of the building, where he was shot;

(m) The group of 5 people who had been around Mr. Jean at the time of the shooting walked from the rear of the building to the street, passing Mr. Thistle;

(n) Immediately after the shooting, she, Mr. Turner and Mr. Locey-Derochie ran from the scene by two different routes, meeting up behind 349 Lacasse and entering that building by the back door which had been propped open;

(o) When Ms. Locey, Mr. Turner, and Mr. Locey-Derochie got back to Ms. Richards' apartment after the shooting, Ms. Locey took the firearm from Mr. Locey-Derochie and put it back in the Adidas bag;

(p) Ms. Locey then left the apartment carrying the Adidas bag, which contained the firearm.

[124] Reasonable Inferences Regarding Ms. Locey

In my view, the following reasonable inferences arise from these facts:

(a) She knew, at the latest immediately after her son and Mr. Chrétien arrived at Ms. Richards' apartment, that he had a firearm which he intended to take to confront Mr. Jean;

(b) She knew no later than that point in time that her son was doing so in order to kill Mr. Jean or cause him serious bodily harm which was likely to cause his death; [10]

(c) She knew that he was doing that as a result of her communications with him over the prior hour in which she had been exhorting him to come to her aid;

(d) She knew, because he had arrived with a gun and Mr. Chrétien, that he had taken some time to plan and deliberate as to how to accomplish his goal;

(e) She aided her son in doing that by encouraging the others to join them in going over to 340 Lacasse (by saying "let's go get him") and by encouraging Mr. Thistle to come out of the building and leave with her and Mr. Chrétien, thereby leaving Mr. Jean without his assistance to defend himself against the coming attack.

[125] Committal on First Degree Murder

Ms. Locey is committed to trial on first degree murder.

(c) Mr. Chrétien

[126] Mr. Chrétien's Defence Submission

Mr. Chrétien's counsel submit that he should be discharged completely, saying that there is no evidence to establish what he was discussing with Mr. Locey-Derochie in the text messages and phone calls; no evidence to establish that he knew that there was a gun in the bag when he brought it into the taxicab; no evidence to show that he knew why he was getting the bag, and no evidence that he knew Mr. Locey-Derochie intended to kill Mr. Jean or that the killing was planned and deliberate.

[127] Further Defence Submission

He further submits that after the gun was pulled out in the apartment, there is no evidence that he did anything other than walk across the street at the same time and with the other three, and then leave the scene.

[128] Salient Facts Regarding Mr. Chrétien

The following facts of which there is direct evidence are, in my view, key to my decision in respect of Mr. Chrétien:

(a) Mr. Locey-Derochie phoned Mr. Chrétien's phone 3 times and texted 17 times in the 10 minutes between 7:43 p.m. and 7:53 p.m.; all of these were after Ms. Locey had spoken to her son on 3 separate occasions within a span of 8 minutes;

(b) he knew, from what he was told by Mr. Locey-Derochie in the cab, that Mr. Locey-Derochie intended to take care of something that had happened between Mr. Jean and his mother and that Mr. Locey-Derochie was "pissed off";

(d) he accompanied Mr. Locey-Derochie and went to his father's house, where he retrieved the bag and gave it to Mr. Chrétien;

(e) he accompanied Mr. Locey-Derochie into Ms. Richards' apartment at 349 Lacasse and was standing beside Mr. Locey-Derochie when he pulled the firearm from the Adidas bag and tucked it under his jacket;

(f) he was in the apartment when Ms. Locey said both that Mr. Jean had raped her and "let's go get him" with a mood that was "all adrenalin pumped up";

(g) he left the apartment at the same time as the other three, walking in a single line across Lacasse and heading towards 340 Lacasse;

(h) he and Ms. Locey met Mr. Thistle and told him "let's go";

(i) after the shooting, a white male ran north on Lacasse away from 340 Lacasse.

[129] Mr. Thistle's Inconsistent Evidence

Mr. Thistle did change his evidence in cross-examination to say that it was Ms. Locey who had said "let's go" to him, rather than both Ms. Locey and Mr. Chrétien, as he had testified in chief. However, it would be open to the trier of fact to believe some of Mr. Thistle's evidence and disbelieve other parts of it. In making my decision, I am required to put the Crown's case at its highest, and assume that Mr. Thistle's evidence in chief will be accepted.

[130] Reasonable Inferences Regarding Mr. Chrétien

In my view, the evidence gives rise to the following reasonable inferences:

(a) Mr. Chrétien knew that there was a firearm in the Adidas bag, having procured it from his father's house and carried it to the cab, knowing that it was of such importance to Mr. Locey-Derochie that he insisted on Mr. Chrétien going to his father's house and retrieving the bag himself;

(b) at the time he obtained the Adidas bag, Mr. Chrétien knew that Mr. Locey-Derochie intended to confront Mr. Jean and use the firearm to kill him, that this was part of a plan upon which Mr. Locey-Derochie had deliberated, and that giving him the firearm would assist him in that plan;

(c) Mr. Chrétien knew, when he got the Adidas bag with the firearm in it for Mr. Locey-Derochie, that Mr. Locey-Derochie had been planning and deliberating to kill Mr. Jean with the firearm at least as long as the 10 minutes in which he had been in communication with him;

(d) Mr. Chrétien knew, when he got the Adidas bag for Mr. Locey-Derochie, that giving it to him would assist him to kill Mr. Jean;

(e) Mr. Chrétien learned once again that Mr. Locey-Derochie intended to use the firearm to confront and kill Mr. Jean, and that this was part of a plan developed and deliberated upon by Mr. Locey-Derochie, when Mr. Locey-Derochie pulled the firearm out in front of him in the apartment and tucked it in his jacket, and Ms. Locey said both that Mr. Jean had raped her and "let's go get him" in an excited manner;

(f) when Mr. Chrétien, together with Ms. Locey, said "let's go" to Mr. Thistle after crossing the street with the three others, he was doing so in order to assist Mr. Locey-Derochie in his plan, by removing Mr. Thistle from the scene.

[131] Direct Evidence vs. Reasonable Inferences

In my view, Mr. Chrétien's counsel's submissions that there is no evidence that he knew that the Adidas bag contained a firearm, what he was discussing in the phone calls and text messages, or that he knew that Mr. Locey-Derochie intended to kill Mr. Jean, confuses direct evidence with reasonable inferences that could arise from the direct evidence. I agree there is no direct evidence on these matters. That, however, is not the issue before me.

[132] Committal on First Degree Murder

Mr. Chrétien is committed to trial on first degree murder.

(d) Mr. Turner

[133] Mr. Turner's Defence Submission

Mr. Carew, Mr. Turner's counsel, submits that there is no evidence to suggest that his client was present for any calls Ms. Locey made to Mr. Thistle; no evidence that Mr. Turner had an issue with Mr. Jean; no evidence that there was a plan to kill Mr. Jean or, if there was, that Mr. Turner knew of it; and no evidence that Mr. Turner knew there was a firearm.

[134] Crown's Submission

Crown counsel submits that Mr. Turner aided Mr. Locey-Derochie to kill Mr. Jean by agreeing that he could use the apartment as a "staging ground" from which to launch the attack, and by following Mr. Locey-Derochie behind 340 Lacasse, from which there could arise an inference that he did so to instill courage. He also submitted that it would be a reasonable inference that Mr. Turner was part of the struggle at the back of the building described by Mr. Thistle in which he said Mr. Jean's arms were held by two people.

[135] Salient Facts Regarding Mr. Turner

In my view, the following facts of which there are direct evidence are key to my decision in respect of Mr. Turner:

(a) Ms. Locey was outside with him at 7:51 p.m. and with him in the apartment from then to when Mr. Locey-Derochie and Mr. Chrétien arrived;

(b) He heard Ms. Locey say that Mr. Jean attempted to rape her;

(d) He agreed to Ms. Locey calling her son, and was listening and participating in this call, during which Ms. Locey told her son that she needed him "ASAP" and used words like "he is going to get it";

(e) his phone was used to call Mr. Locey-Derochie at 7:54:11, after Mr. Locey-Derochie had exchanged 18 texts and 2 phone calls with Mr. Chrétien; the conversation lasted 39 seconds;

(f) he was in the apartment when Mr. Locey-Derochie entered with Mr. Chrétien and pulled out the gun; [11]

(g) he heard Ms. Locey say that Mr. Jean had raped her and said "let's go get him" in a mood that was "all adrenalin pumped up";

(h) the four were in the apartment less than one minute and 30 seconds;

(i) he left the apartment at the same time as the other three, walking in a single line across Lacasse and heading towards 340 Lacasse;

(j) he went one way with Mr. Locey-Derochie while Ms. Locey and Mr. Chrétien went another way;

(k) after the shot, he and Mr. Locey-Derochie ran together across the street, behind 345 Lacasse, jumping onto and off a deck behind 347 Lacasse, and then met up with Ms. Locey and entered 349 Lacasse by the back door which locked by itself and would have had to have been propped open to be opened;

(l) just before they jumped onto the deck, Mr. Turner made a motion with his right hand.

[136] Reasonable Inferences Regarding Mr. Turner

In my view, these facts support the following reasonable inferences:

(a) Mr. Turner knew that Mr. Locey-Derochie intended to confront Mr. Jean because of what he had done to his mother;

(b) Mr. Turner knew that Mr. Locey-Derochie had a gun;

(d) Mr. Turner knew that there was a plan to confront and kill Mr. Jean, which had been the subject of deliberation since Ms. Locey had entered the apartment an hour earlier, and the subject of discussions to which Mr. Turner was party or of which he was aware;

(e) Mr. Turner acted in concert with the other three to assist in this plan by adding to the potential force of the group to provide support or hinder interference.

[137] Dunlop Requirement

Defence counsel relied on the case of R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881 for the proposition that there must be some evidence that an accused person did more than simply be present during the commission of an offence to be a party. In my view, this requirement is met by the reasonable inference that Mr. Turner acted in concert with the other three as set out above.

[138] R. v. Carrington

The recent decision of the Court of Appeal in R. v. Carrington, 2017 ONCA 2 (CanLII), [2017] O.J. No. 16 speaks to this. In dismissing an appeal from a conviction of the appellant as a party to a robbery in which the appellant had entered the backseat of the victim's car after two others accosted the victim with guns and got in the front, the court wrote:

While knowledge of another's intent to commit a crime and mere presence at the scene do not lead automatically to a finding of aiding and abetting, such factors can be evidence of aiding and abetting: R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, at p. 896; R. v. McKay, 2012 ABCA 310, 84 Alta. L.R. (5th) 404, at paras. 21-22. Here, by getting into the victim's car, at a minimum, the appellant both abetted, and demonstrated an intention to abet, the other men in robbing the victim of his car. This is not a case where the appellant was a mere bystander. He took an active step of getting into the victim's car that supported the other men in their endeavor, namely, depriving the victim of his car through the use of threats. To be guilty as an aider or abettor, all that is necessary is that the accused intended the consequences that flowed from his or her aid to the principal offender; it is not necessary to show that he or she desired or approved of the consequences: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, 8 C.R. (5th) 308, at para. 37. The fact that the appellant's conduct would aid the other men in their endeavour was patent; nothing in the evidence rebuts the conclusion that he intended the consequences of his actions.

[139] Active Steps Taken by Mr. Turner

There is evidence that Mr. Turner took the active step of acting in concert with the other three in walking across Lacasse Street to confront Mr. Jean and then going with Mr. Locey-Derochie when he split off from the other two, knowing that he had a gun and that retribution was being sought.

[140] Mr. Turner's Statement Upon Return

Mr. Carew submits that the evidence that his client reacted to Ms. Richard's exclamation, on their return to the apartment after the shooting, that she thought they were just going to scare Mr. Jean by saying "I can't believe it just happened" should be considered by me as part of my limited weighing of the circumstantial evidence. This evidence, if believed by the trier of fact, may assist in determining the question of whether Mr. Turner had the requisite knowledge of Mr. Locey-Derochie's intention required to be party to murder. It would be open, however, for the trier of fact to disbelieve what Mr. Turner is said to have said, disbelieve Ms. Richards' evidence that he said that, or conclude that Mr. Turner's statement was simply an after-the-fact recognition of what he had just done. I must put the Crown's case at its highest.

[141] Committal on First Degree Murder

Mr. Turner is committed to trial on first degree murder.

Released: June 19, 2017

Signed: Justice P.K. Doody

Footnotes

1There was no evidence as to who Mr. Jean meant by "him" – whether it was Mr. Jean himself, Mr. Thistle, or Mr. Bisson.

2The time of this event comes from a clock attached to a camera in the taxi which showed Mr. Chrétien getting into the cab; the time of the 8:18:30 entry comes from a GPS signal unit attached to the cab; there was no evidence about the extent, if any, of synchronization of the two clocks.

3The time for this event is taken from the taxi GPS unit; the time for the preceding event is taken from the clock attached to the camera in the cab.

4Mr. Chrétien's statement is only evidence against him; it cannot be used as evidence against any of the other defendants. (R. v. Perciballi (2001), 154 C.C.C. (3d) 481 at paras. 84-5 (O.C.A.))

5This time is from two video cameras (one attached to 345 Lacasse which was 36 minutes fast and displayed 21:03:34 and one attached to 353 Lacasse which showed 9:19:40 and was 53 minutes fast; the time on both was only accurate to plus or minus 59 seconds) and the clock attached to the camera in the cab, which showed the two men leaving at 8:27:51.

6As previously indicated, this statement can only be used against Mr. Chrétien and not his three co-defendants.

7Once again, I note that this can only be used against Mr. Chrétien.

8The time on the video showed 21:51:01 in the 24 hour clock; evidence was led that the clock on the video was one hour and twenty minutes fast. It is accurate to plus or minus 59 seconds.

9On the basis of Ms. Richards' identification of Mr. Turner as the individual in the rear, with the individual in the front holding the firearm, and their appearance moments later in Ms. Richards' apartment with Mr. Locey-Derochie holding the firearm;

10While it is not necessary, or even relevant, to my inquiry that this be the only reasonable inference which can arise from the facts of which there is direct evidence, I note that the inference which Ms. Pegg submits is appropriate– that Ms. Locey knew that her son was going to "lay a beating on" the deceased and no more – requires that the presence of the gun be explained. A beating does not require a gun.

11As I have set out earlier in these reasons, Ms. Richards testified in chief that she was sitting on the bed when she saw Mr. Locey-Derochie pull out the firearm just inside the doorway. It was her evidence in chief that Mr. Turner and Ms. Locey were also on the bed when he pulled out the firearm, but they were closer to the front door and Mr. Locey-Derochie. She said in cross-examination that although she saw the firearm, and Mr. Turner was on the bed in the living room, he might not have had the same view as she did of the firearm and she did not know if he actually saw it.