COURT OF APPEAL FOR ONTARIO

DATE: 20060628 DOCKET: C44329 & C44341

GOUDGE, GILLESE and LAFORME JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN Respondent

• and -

JOHN MAGNO and SHAUN MCMASTER Appellants

Counsel: Mark J. Sander for the appellant, John Magno Avrum F. Flisfeder for the appellant, Shaun McMaster Jennifer Woollcombe for the respondent

Heard: May 4, 2006

On appeal from an order of Justice Frank R. Caputo of the Superior Court of Justice dated October 3, 2005, granting certiorari setting aside the order of Justice Sally E. Marin of the Ontario Court of Justice dated December 13, 2004, discharging the appellants on the charges of second degree murder.

GILLESE J.A.:

[1] Just after midnight on December 25, 2001, Woodbine Building Supply was totally destroyed in a massive fire that had been intentionally set. It was located on Danforth Avenue in a residential neighbourhood of Toronto; some of the nearby homes were only 100 to 150 feet away from the business. One hundred and twenty firefighters were deployed to extinguish the fire and prevent its spread. The fire crews evacuated local residents and were able to prevent the fire from spreading to the neighbourhood. Debris from the explosion sprayed across Danforth Avenue and became embedded in cars parked across the street. On January 9, 2002, during excavation of the basement of the premises, demolition workers discovered the severely burned body of Tomislav Jarcevic. After the fire, the appellant Magno and his brother made an insurance claim for $3.5 million -- $2 million for the building and $1.5 million for the contents and inventory.

[2] It was the Crown’s theory that Magno, an owner of the business and premises, planned to burn the property so that he could obtain the insurance proceeds and that he had recruited the appellant McMaster, John Paskalis and Jarcevic to assist him. Magno was at home during the fire but the other three were on the scene.

[3] The appellants were charged with, among other things, second degree murder under s. 229(c) of the Criminal Code. That provision reads as follows:

229. Culpable homicide is murder

(c) where a person, for an unlawful object, does anything that he knows (or ought to know)[^1] is likely to cause death, and thereby causes death to a human being notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

[4] After a lengthy preliminary inquiry before Marin J., the appellants were discharged on the second degree murder charges.

[5] The preliminary inquiry judge referred extensively to this court’s decision in R. v. Meiler (1999), 136 C.C.C. (3d) 11. In Meiler at para. 41, this court states that the actus reus requirement of the offence under s. 229(c) is that the offender does anything thereby causing the death of a human being.

[6] The preliminary inquiry judge held that this requirement was met, stating at para. 121 of the reasons that there was “ample” evidence that the appellants’ participation in the arson was a significant contributing cause of Jarcevic’s death.

[7] In paras. 48 - 49 and 53 - 54 of Meiler, this court identified two elements of the mens rea requirement. First, the acts of the accused that caused the death must have been done for the purpose of “an unlawful object”, that is, to bring about some unlawful object other than the injury that causes death. Second, the accused must know that the act or acts that are done for the purpose of the unlawful object are likely to cause death, notwithstanding the wish to effect the object without causing death or bodily harm to any human being. It is the latter element that creates a requirement for the subjective foresight of death by the accused. As this court explained at para. 58, the accused need not foresee the precise situation or all of the events that result in the death. It is sufficient if the accused has the subjective foresight that the acts done for the unlawful object are likely to cause death and those acts are sufficiently linked to the death to have caused the death within the meaning of the section.

[8] The preliminary inquiry judge concluded that the first element of the mens rea requirement was met in that there was evidence of an unlawful object in addition to the dangerous act causing death, whether that unlawful object is determined to be arson or conspiracy to commit arson for a fraudulent purpose.

[9] She also found evidence of conduct that a reasonable person would know was likely to cause death. At para. 110 of her reasons, the preliminary inquiry judge stated:

It is no longer constitutionally permissible to prove that the accused ought to have known that their conduct was likely to cause death. This case would be simple if the objective standard was still in effect, as in my view, there is evidence which, if believed, could support a jury’s finding that each accused ought to have known of the likelihood of death in carrying out the conspiracy to commit arson. However, that is not the test. [footnotes omitted, emphasis added]

[10] The preliminary inquiry judge noted that the cumulative evidence showed that the appellants were aware of the dangerous nature of their actions. However, she held that the precautions taken by the appellants to avoid the consequence of serious bodily harm or death “belie subjective foresight of the likelihood of death”. She concluded that the lack of congruence between the unlawful object of the conspiracy to commit arson for fraud and the dangerous act of arson and its consequence of Jarcevic’s death did not support the reasonable inference that the appellants had the requisite subjective foresight necessary for murder.

[11] The appellants were committed to stand trial on manslaughter and a number of other charges.[^2]

[12] The Crown brought an application for certiorari to review the discharge on murder. There was but one issue before the reviewing judge: whether the preliminary inquiry judge committed a jurisdictional error in relation to the subjective foresight element of the mens rea requirement.

[13] Justice Caputo quashed the discharge after concluding that the preliminary inquiry justice had, in bridging the gap from objective foreseeability to subjective foreseeability, weighed competing inferences and chosen the inference favourable to the accused.

[14] The primary issue before this court is whether the reviewing judge correctly concluded that the preliminary inquiry judge committed jurisdictional error. McMaster raises an additional issue: whether the reviewing judge erred in hearing the certiorari application without the transcripts of the evidence adduced at the preliminary inquiry. The court did not call on the Crown to respond to this additional issue.

THE JURISDICTIONAL ISSUE

[15] The reviewing judge correctly articulated the legal principles that governed the certiorari application. Those principles can be summarised as follows. The purpose of a preliminary inquiry is to ensure that there is sufficient evidence to commit an accused to trial. If there is evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry justice must commit the accused. Section 548(1)(b) of the Criminal Code requires a preliminary inquiry judge to consider the whole of the evidence adduced during the preliminary inquiry before there may be a discharge. The judge may not discharge the accused unless, on the whole of the evidence, no sufficient case is made out. While the sufficiency test is the same whether the evidence is direct or circumstantial, the nature of the judge’s task varies. In cases where there is direct evidence on each of the elements of the offence, the accused must be committed for trial. Where, as in this case, the evidence is circumstantial, the judge must engage in a “limited weighing of the evidence” in order to determine whether the elements of the offence “may reasonably be inferred from the circumstantial evidence”. See R. v. Arcuri, 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.).

[16] In para. 29 of his reasons, relying on R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, the reviewing judge correctly states:

It is a jurisdictional error and subject to review for a Justice presiding over a preliminary inquiry to discharge where there are competing inferences in the evidence and one of those inferences supports the charge before the court.

[17] The reviewing judge concluded that the preliminary inquiry judge resolved the issue of subjective foresight by weighing competing inferences to determine that there was no evidence that the accused knew that their acts were likely to cause death. He reasoned that once the preliminary inquiry judge found that there was objective foreseeability, she must have accepted the inference that the appellants did not intend the natural consequences of their actions. That is because, having found that a reasonable person ought to have foreseen the likelihood of death, absent evidence that the accused were not reasonable persons, one permissible inference is that these appellants, as reasonable persons, intended the natural consequences of their actions and therefore had the requisite mens rea.

[18] I agree with that result. The Crown is often required to prove a culpable state of mind as an element of an offence. The culpable state of mind may be intention, foresight or something else, such as knowledge. Section 229(c) requires proof of foresight, that is, that an accused foresaw that the acts done for the unlawful object were likely to cause death. The inquiry is ultimately a subjective one. That does not mean, however, that a consideration of what the normal or reasonable person would have intended or foreseen is unhelpful or irrelevant. A person’s state of mind may be determined by what a person says and does. It may be deduced also by considering what the natural consequences of someone’s actions are and whether the person, by acting in the manner for which there would be natural consequences, foresaw that those natural consequences would occur. While there is no legal presumption that a person foresees or intends the natural consequences of his or her acts, it is a common sense proposition. As Roach J.A. wrote, citing Lord Denning, in R. v. Giannotti (1956), 115 C.C.C. 203 at 213 (Ont. C.A.):

The presumption of intention is not a proposition of law but a proposition of ordinary good sense. It means this: that, as a man is usually able to foresee what are the natural consequences of his acts, so it is, as a rule, reasonable to infer that he did foresee them and intend them. But, while that is an inference which may be drawn, it is not one which must be drawn. If on all the facts of the case it is not the correct inference, then it should not be drawn.

[19] The preliminary inquiry judge properly pointed out that the appellants could not be convicted on the basis that death was objectively foreseeable as a likely result of their actions. However, she appears to have concluded that as the offence could not be proven on that basis, she could not consider objective foresight at all. In my view, that led her to jurisdictional error. The fact that a reasonable person would have foreseen the likelihood of death makes available the inference that the appellants, as reasonable persons, would have foreseen the likelihood of death. By failing to consider the possibility that this inference was available, the preliminary inquiry judge failed to consider the inference favourable to the Crown and considered only the inference that favoured the appellants.

[20] The preliminary inquiry judge fortified her conclusion that the appellants had no subjective foresight of the likelihood of death in a number of ways. In my view, the reviewing judge correctly found that each of these represented the preliminary inquiry judge preferring one inference over another available one. For instance, the preliminary inquiry judge held that it would have been “unreasonable” for the appellants to continue with their plan had they known that it was likely to cause death. However, as the reviewing judge points out, it was open also to a trier of fact to infer that the appellants took a chance and committed the offences, knowing that death was likely, because they were prepared to take the risk. The absence of congruence between the arson or conspiracy and the likely consequence of death cannot preclude the availability of the inference that the consequence was foreseen.

[21] Similarly, the preliminary inquiry judge held that it would have been contrary to common sense and to the appellants’ purpose and motive to continue had they foreseen death. Again, I agree with the reviewing justice that the precautions that the appellants took may lead to an inference that the appellants, while not intending death, were aware that it was likely to flow from their actions.

[22] Accordingly, I would dismiss this ground of appeal.

THE TRANSCRIPTS ISSUE

[23] McMaster would not agree to a statement of facts for the purposes of rule 6.13 of the Ontario Court of Justice Criminal Proceedings Rules, which permits a judge to dispense with the filing of a transcript with the agreement of the Crown and the accused. Before the reviewing judge, the Crown and Magno took the position that it was appropriate for him to proceed on the basis of the facts as described by the preliminary inquiry judge in her reasons. McMaster objected. The reviewing judge proceeded to hear the application without the transcripts.

[24] The reviewing judge relied on rule 2.02 to dispense with the necessity of filing the entire transcript on the certiorari application. Rule 2.02 permits the court, “where and as necessary in the interests of justice”, to dispense with compliance with any rule at any time. He noted that no party alleged that the preliminary inquiry judge failed to consider the whole of the evidence presented by the Crown; no party alleged any factual error in the reasons given by the preliminary inquiry judge; the facts relied on by the parties were not in dispute; and, the only issue to be decided was a legal one.

[25] McMaster relies on R. v. Boylan (1979), 46 C.C.C. (2nd) 415 (Sask. C.A.) as support for this ground of appeal. However, that case is readily distinguishable from the instant case. In Boylan, there was a malfunction in the recording apparatus at the accused’s preliminary inquiry that made it impossible for the evidence to be transcribed. Following his committal for trial, the accused’s application for certiorari was ultimately successful because the Saskatchewan Court of Appeal held that a proper recording is required by the Criminal Code for the protection of the accused. In the present case, the evidence had been recorded so there was no breach of the Code. The only question is whether the reviewing judge was entitled, in the circumstances, to proceed without a transcript of the evidence.

[26] McMaster has advanced no argument as to how the availability of the transcript might have had an effect on the reviewing judge’s decision. He makes no claim of prejudice due to the absence of transcripts. He does not suggest that the proceedings or result might have been different had the reviewing judge had the transcripts. Nor does he make any complaint about the reviewing judge’s understanding or articulation of the facts – no doubt because he explicitly accepts the facts relied on by the reviewing judge.

[27] In the circumstances, I see no possibility of error arising from the absence of transcripts. The thorough, careful reasons of the preliminary inquiry judge provided the necessary factual basis on which the reviewing judge could decide the legal issue before him. I see no basis for interfering with the exercise of the reviewing judge’s discretion and, consequently, would dismiss this ground of appeal.

DISPOSITION

[28] Accordingly, I would dismiss the appeal.

RELEASED: June 28, 2006 (“STG”)

“E. E. Gillese J.A.”

“I agree S. T. Goudge J.A.”

“I agree H. S. LaForme J.A.”

[^1]: Since subjective foresight of death must be proven beyond a reasonable doubt to sustain a conviction for murder, the phrase “ought to know” infringes ss. 7 and 11(d) of the Charter and is not saved by s. 1: see R. v. Martineau (1990), 58 C.C.C. (3d) 353 (S.C.C.) [^2]: The other offences included arson endangering life, conspiracy to commit arson endangering life, arson and arson for a fraudulent purpose. These committals have not been subject to review.