WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:
539 (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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged; or
(d) if he or she is ordered to stand trial, the trial is ended.
(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).
(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction
(4) [Repealed, 2005, c. 32, s. 18(2).]
R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.
CITATION: R. v. Pletch, 2011 ONCA 813
DATE: 20111221
DOCKET: C53742 & C54578
COURT OF APPEAL FOR ONTARIO
Simmons, Blair and Hoy JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Scott David Pletch
Appellant
AND BETWEEN
Her Majesty the Queen
Respondent
and
Dwight Chambers
Appellant
Dale Ives, for the appellant Scott David Pletch
W.S. Mathers, for the appellant Dwight Chambers
Leslie Paine, for the respondent
Heard and released orally: December 16, 2011
On appeal from the judgment of Justice Leonard Ricchetti of the Superior Court of Justice dated April 20, 2011.
ENDORSEMENT
Background
[1] In separate but related appeals, Mr. Pletch and Mr. Chambers seek to set aside the order of Ricchetti J. of the Superior Court of Justice, dated April 20, 2011, dismissing their applications for certiorari to quash an order committing them for trial on a charge of conspiracy to commit murder. They ask this Court to quash the committals.
[2] We decline to do so.
[3] The appellants, together with a third co-accused (Cody Crocker), were each charged with conspiracy to murder an individual named Mitchell Bowes. The charges arose out of a heated argument – conducted through various telephone conversations – between two groups of young men: the Wingham group (including the appellants); and the Hanover group (including Bowes and Tyler Hammond). Several phone calls were made to and from the Bowes’ house in Hanover. There was much yelling, shouting, swearing, and alcohol-induced anger and bravado, and both Pletch and Chambers are said to have threatened Bowes during the calls. The nature of the alleged threats is at the heart of this appeal.
[4] Eventually, the appellants and Crocker agreed to go to Bowes’ home in Hanover. Crocker first drove the appellants to another residence in Wingham, where Chambers picked up a shotgun and the three then drove to Hanover. When they arrived at Bowes’ home, Chambers (according to Chambers) went to the front door and yelled back to the vehicle that there was no one home. Two shots were fired through the front window of the house (it is not clear by whom). Bowes and Hammond had been hiding behind the curtains looking out. Bowes was not harmed, but Hammond was shot in the lower back and seriously injured. The appellants and Crocker then returned to Wingham where they hid the shotgun.
[5] Arrests followed. Crocker and Chambers both gave inculpatory statements to the police.
[6] On October 7, 2010, Weseloh J. committed the appellants for trial on the charge of conspiracy to commit murder. Crocker was discharged. The appellants’ application for certiorari to quash the committal was dismissed by Richetti J.
Analysis
[7] The appellants submit that the preliminary hearing judge erred in finding that there was sufficient evidence upon which a properly instructed jury could reasonably infer there was an agreement between the appellants to murder Mr. Bowes and that the certiorari judge erred in failing to quash their committals on that basis.
[8] As noted above, the nature of the statements attributed to the appellants in the heated phone exchanges is important. The appellants concede that the evidence could give rise to an inference that they agreed to go to Hanover to get into a fight with and assault Bowes, or even that they each separately and individually threatened to kill Bowes. They argue, however, that the evidence was not capable of supporting an inference that they agreed together to go to Hanover and murder him and therefore cannot support a committal for conspiracy to commit murder.
[9] In our view the preliminary hearing judge properly concluded that there was some evidence from which an inference could reasonably be drawn that the appellants agreed together to, and intended to, go to Hanover to murder Bowes. The fact that the evidence may also give rise to the other inferences suggested by the appellants is immaterial for these purposes.
[10] There were threats to go to Hanover to fight with or harm Bowes, to be sure. But there was also language from which it could be inferred that the appellants intended to kill him with a firearm. For example, Pletch is said to have told Bowes, or others on the Hanover end of the phone, that he would “go up there and blow their heads off,” and that he was “going to put a shotgun down [someone’s] throat.” Another witness testified that Chambers said “something along the lines of killing the person he was talking to” and “you’re a dead man.” The appellants were together in the Wingham kitchen when they each made these threats and they were the persons engaged in the Wingham end of the calls. A Hanover witness testified that he heard one of the people on the Wingham end of the phone say “we’re going to kill you, you don’t know who you are dealing with, we’re going to come over there and deal with you guys.”
[11] The evidence was that the appellants and Crocker all left the Wingham residence with the express intention of going to Bowes’ place in Hanover. Other evidence confirms that they did so, stopping en route to pick up a shotgun, and that two shots were fired into the Bowes’ house on arrival. This lends support to an inference that they not only agreed to a plan but they actually tried to carry it out.
[12] We are satisfied that the evidence as a whole revealed a pattern of conduct from which an inference was available that the appellants agreed together to murder Bowes, and to go to Hanover to do so. In short, there was sufficient evidence before the preliminary hearing judge to justify ordering the appellants to stand trial on the charge of conspiracy to commit murder.
Disposition
[13] For the foregoing reasons, the appeal is therefore dismissed.
“Janet Simmons J.A.”
“R.A. Blair J.A.”
“Alexandra Hoy J.A.”