DATE: 20021002 DOCKET: C38285 C38286

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – A. K. AND A. V. (Appellants)

BEFORE: O’CONNOR A.C.J.O., SIMMONS AND CRONK JJ. A.

COUNSEL: Delmar Doucette and Breese Davies for the appellant, A. K.

John Rosen for the appellant, A. V.

Brian McNeely for the respondent

HEARD: September 18, 2002

On appeal from the order of Justice Eugene Ewaschuk dated May 27, 2002.

E N D O R S E M E N T

[1] [1] On January 17, 2002, following a preliminary inquiry, P. Harris, J. of the Ontario Court of Justice ordered that the appellants stand trial for the second degree murder of their three-month old daughter. The appellants’ subsequent application for certiorari in the Superior Court of Justice was dismissed by Ewaschuk, J. on May 27, 2002. They appeal to this court from that dismissal, seeking to have their committal for trial quashed. In the alternative, they seek to have their committal on the charge of second degree murder quashed and replaced with a committal on manslaughter only.

[2] [2] The appellants make three main arguments in support of their appeals. First, they argue that the inquiry judge concluded that there was no evidence upon which a reasonable jury, properly instructed, could find either or both of them guilty of second degree murder. Accordingly, they contend that the motions judge erred in his interpretation of the inquiry judge’s reasons. Second, apart from the inquiry judge’s conclusions, the appellants argue in any event that their committal is not justified on the evidence tendered at the preliminary inquiry because it failed to indicate which of the appellants caused the fatal injuries to their daughter. In particular, in reliance on R. v. Schell and Paquette (1977), 33 C.C.C. (2d) 422 (Ont. C.A.) and R. v. Schell and Paquette (No. 2) (1979), 47 C.C.C. (2d) 193 (Ont. C.A.), the appellants contend that they were entitled to be discharged. Finally, the appellants argue that there was no evidence at the preliminary inquiry that the perpetrator had the requisite intent for murder. Therefore, they assert that the committal on second degree murder must be quashed and replaced with a committal on manslaughter only.

[3] [3] For the reasons that follow, the appeals are dismissed.

(1) The Reasons of the Inquiry Judge

[4] [4] In support of their interpretation of the committal reasons of the inquiry judge, the appellants rely on the following two statements by the inquiry judge:

12. Analysis

There is no direct or circumstantial evidence that could result in a reasonable inference that one accused is more likely than the other to have assaulted the child.

15. The basis of liability of each accused

In this case there is no evidence as to which person before the Court caused the injuries and no evidence of aiding or abetting or the forming [sic] an intention in common to carry out the child abuse within the meaning of Section 21 of the Criminal Code.

[5] [5] The appellants contend that those statements by the inquiry judge reflect his conclusion that there was no evidence at the preliminary inquiry that is capable of proving that either of the appellants was a primary or secondary party in the death of their daughter. For several reasons, we do not agree that the reasons of the inquiry judge, properly understood, are to be interpreted in the manner urged by the appellants.

[6] [6] The inquiry judge’s reasons must be read as a whole. Interpretation of them cannot be confined to the scrutiny of isolated passages, devoid of context and without regard to the recorded sequence and content of the inquiry judge’s reasoning. Accordingly, it is important to review the dispositive sections of the inquiry judge’s reasons, in the order in which he constructed them.

[7] [7] The first statement of the inquiry judge relied upon by the appellants was made in section twelve of his reasons, at the outset of his analysis. It was followed almost immediately by these important observations:

[The appellants] were the only two people who had custody and control of the child during the material times and by reasonable inference were virtually the only ones who had the opportunity to inflict the fatal injuries. …

[A] reasonable jury could deduce that A. V. or A. K. or both of them acting together in some fashion committed grievous violence against the child on the basis of the evidence before this Court. [Emphasis added.]

[8] [8] Contrary to the appellants’ contention, those observations by the inquiry judge clearly reflect his view that there was some evidence adduced at the preliminary inquiry upon which a properly instructed jury could find either or both of the appellants guilty of the offence alleged.

[9] [9] The inquiry judge next addressed the requisite mens rea for murder. Section thirteen of his reasons is entitled “does the assaultive party or parties have the intent for murder?”. That heading again suggests that the inquiry judge recognized the possibility that either or both of the appellants could be found at trial to have the requisite intent for murder. He then indicated that the circumstantial and direct evidence at the inquiry established, among other matters, that both of the appellants had “virtually exclusive opportunity” and a financial motive to kill their daughter. Thereafter he stated, in section fourteen of his reasons:

14. Conclusion

As a result of opportunity, motive, the number and location and timing of the wounds to the child, and the increasingly severe reaction to the abuse by [sic] the child which would have come to the attention of a reasonably attentive parent according to Dr. Smith, there is sufficient evidence to support a reasonable inference that any perpetrator or party to the perpetration of these injuries meant to cause bodily harm to the child that he/she knew was likely to cause her death and was reckless as to whether death ensued. In other words if the Crown’s evidence is believed it would be reasonable that a properly instructed jury could infer guilt in respect to second degree murder. [Emphasis added.]

[10] [10] Although those statements by the inquiry judge were made in the context of determining whether it was necessary to analyze whether the evidence warranted a committal for trial on the charge of manslaughter, in contrast to the charge of second degree murder, the plain language employed by him indicates his view that there was some evidence adduced at the inquiry upon which a reasonable jury could find the appellants guilty of second degree murder. Ewaschuk J. observed, correctly in our view, that the inquiry judge’s reference to a perpetrator “or party to the perpetration” of the injuries was implicitly a reference to a secondary party to the offence alleged. The inquiry judge’s use of the term “party to the perpetration” is consistent with his earlier unequivocal statement that, on the evidence before him, a reasonable jury could deduce that both of the appellants acted together in some fashion to commit grievous violence against their child.

[11] [11] In section fifteen of his reasons, the inquiry judge commented further on the basis of liability for each accused. The full text of his statement is as follows:

15. The basis of liability for each accused

In this case there is no evidence as to which person before the Court caused the injuries and no evidence of aiding or abetting or the forming [sic] an intention in common to carry out the child abuse within the meaning of Section 21 of the Criminal Code. To entertain the theory of the Crown that all theoretical possibilities of liability for homicide must be examined is to engage in impermissible speculation and to leaven the evidence with conjecture. In this case, the reasonable inferences that can be drawn from the circumstantial evidence equally inculpate A. V. and A.K. in the charge of second degree murder. The precise nature of the ultimate criminal liability attaching to each person if any, is a matter for the jury to decide. It may well come to pass that the principle in R. v. Schell and Paquette (1977), 33 CCC (2d) 422 (Ont. C.A.) applies. In the latter case the Court held that the trial judge erred in failing to instruct the jury that if they could not decide which one of the accused had administered the fatal beating to the child, then both must be acquitted.

As Dickson C.J.C. concluded in Thatcher v. the Queen (1987), 32 CCC (3d) 481 at p 511:

In sum, this Court has held that it is no longer necessary to specify in the charge the nature of an accused’s participation in the offence: Harder. Moreover, if there is evidence before a jury that points to an accused either committing a crime personally or, alternatively, aiding and abetting another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other, it is “a matter of indifference” which alternative actually occurred: Chow Bew. It follows, in my view, that s. 21 precludes a requirement of jury unanimity as to the particular nature of the accused’s participation in the offence. Why should the juror be compelled to make a choice on a subject which is a matter of legal indifference?

Where, as here, alternative theories of liability are advanced it will be the trial judge’s responsibility, having regard to the nature of the evidence, the theory of the parties, and the totality of the evidence, to realistically assess the possible permutations regarding liability and direct the jury in such a way that the evidence will not be used to arrive at improper inferences. [Emphasis added.]

[12] [12] The appellants argue that the first sentence in the quoted passage is inconsistent with the inquiry judge’s earlier statement, in section twelve of his reasons, that “a reasonable jury could deduce that A.V. or A.K. or both of them acting together in some fashion committed grievous violence against the child” and that, accordingly, the latter statement was made in error by the inquiry judge. We do not accept that assertion.

[13] [13] The inquiry judge’s statement that there was evidence before him upon which a reasonable jury could deduce that either or both of the appellants acting together in some fashion committed the offence alleged, cannot be ignored. That plain statement must be given some meaning. In our view, it clearly contemplates that a properly instructed jury could conclude on the evidence that both of the appellants were principals in the offence alleged, or that one of them caused the death of their daughter.

[14] [14] The appellants’ interpretation of the inquiry judge’s reasons is also flawed for two additional reasons. First, it fails to take into account sections thirteen and fourteen of the inquiry judge’s reasons including, in particular, his reference therein to both a “perpetrator” and a “party to the perpetration” of the victim’s injuries. That reference specifically addresses primary and secondary participation by the appellants in the alleged murder and again holds open the possibility, as did the inquiry judge’s concluding comments in section twelve of his reasons, that a reasonable jury, properly instructed, could conclude on the evidence that both of the appellants were principals in the death of their daughter or that one of them was the perpetrator of her injuries while the other of them was a party to the offence.

[15] [15] Moreover, the appellants’ interpretation of the inquiry judge’s reasons ignores his reference to the decision of the Supreme Court of Canada in Thatcher v. The Queen (1987), 32 C.C.C. (3d) 481. As noted above, that reference appears in section fifteen, which is the last section of the inquiry judge’s reasons. Ewaschuk J. commented that the inquiry judge:

[E]xpressly refers to Regina v. Thatcher to the effect that it matters not whether the jury finds an accused to be a principal party or a secondary party, so long as they are satisfied beyond a reasonable doubt that the particular accused did one or the other.

[16] [16] In our view, had the inquiry judge concluded that the Crown had failed to adduce even a scintilla of evidence upon which either or both of the appellants could be found guilty of the offence alleged, there would have been no need to refer to Thatcher v. The Queen. Indeed, had that been his conclusion, a reference to the Thatcher principle would contradict and confuse his core conclusion. Consequently, the interpretation placed by the appellants on the inquiry judge’s reasons must be rejected.

(2) The Principle in R. v. Schell and Paquette

[17] [17] R. v. Schell and Paquette established that if a jury is satisfied beyond a reasonable doubt in a murder prosecution that the victim was killed by one of two accused, but is unable to determine which one of them, then both accused are entitled to be acquitted. (See also, R. v. Abbott, [1955] 2 All E.R. 899 (C.A.); R. v. Upton (1915), 25 C.C.C. 28 (Ont. C.A.) and R. v. Katwaru (2001), 153 C.C.C. (3d) 433 (Ont. C.A.)). The appellants argue that this case is analogous to R. v. Schell and Paquette and that, accordingly, both of them should have been discharged by the inquiry judge. We disagree.

[18] [18] As observed by Ewaschuk J., the inquiry judge addressed R. v. Schell and Paquette. That case was premised on the proposition that a jury had determined that one of two accused was clearly innocent but the jury was unable to conclude which accused was innocent and which accused was guilty. On the reasons of the inquiry judge, that is not this case. To the contrary, when the reasons of the inquiry judge are read as a whole, it is clear that he concluded that a reasonable jury could determine on the evidence that both of the appellants were active participants in the offence alleged. That conclusion was open to the inquiry judge on the evidence. Thus, the principle in R. v. Schell and Paquette does not dictate the discharge of the appellants.

(3) Mens Rea for Murder

[19] [19] We are not persuaded that the inquiry judge erred in his analysis of whether there was an evidentiary foundation established at the preliminary inquiry to support a finding of the requisite intent for second degree murder. As we earlier mentioned, the inquiry judge concluded that the appellants had virtually exclusive opportunity to kill their daughter and that they had a financial motive to do so. He also had regard to the evidence that the appellants were aware of their daughter’s deteriorating health and condition and that previous significant injuries had been suffered by the child.

[20] [20] The inquiry judge was satisfied that there was some evidence on which a reasonable jury, properly instructed, could determine that either or both of the appellants is guilty of second degree murder. On the record before this court, it was open to the inquiry judge to reach that conclusion and to commit the appellants to stand trial on the charge of second degree murder. Accordingly, in our view, that trial should proceed.

(4) Disposition

[21] [21] Therefore, for the reasons given, the appeals are dismissed.

“D. O’Connor A.C.J.O.”

“Janet Simmons J.A.”

“E. A. Cronk J.A.”