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 therefore 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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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(4) [Repealed, 2005, c. 32, s. 18(2).]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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barnett, 2013 ONCA 179

DATE: 20130325

DOCKET: C55598

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Dylon Barnett, Kristopher McLellan and Kyle Mullen

Respondents

Frank Au, for the appellant

Howard L. Krongold, for the respondent Dylon Barnett

Patrick McCann, for the respondent Kristopher McLellan

Paolo Giancaterino and Marco Sciarra, for the respondent Kyle Mullen

Heard: March 6, 2013

On appeal from the judgment of Justice B.R. Warkentin of the Superior Court of Justice, dated May 11, 2012, dismissing the appellant’s application for certiorari and mandamus and discharging the respondents on first degree murder.

By the Court:

[1] Following a 12-day preliminary inquiry, the preliminary inquiry judge discharged the respondents on first degree murder but committed them to stand trial for the second degree murder of Michael Swan. The Crown’s application for review by way of certiorari and mandamus was dismissed by the reviewing judge. The Crown appeals to this court.

(1) Facts

[2] The three respondents drove from Toronto to Ottawa, and broke into a residence that Swan shared with others. McLellan and Barnett were armed with loaded handguns; Mullen was armed with a baseball bat. They went directly to Swan’s bedroom where Swan was watching TV with his girlfriend, Scott, and a friend, Tanguay. Scott testified that the three armed men blocked the exit to the bedroom, ordered the occupants to get on the ground on their knees, ordered them to get rid of their cell phones, and demanded “where’s the weed?” and “where’s the money?” Tanguay testified that the armed men kept asking “where’s the money, where’s the gun? You know where the shit is, where is everything, what’s going on?” Scott testified that McLellan said to Swan “I know you’re the drug dealer, you know where it is.”

[3] Upon Swan responding, either “I have nothing” in Tanguay’s version or “I don’t know” in Scott’s, McLellan shot him. Scott said McLellan shot Swan after Swan “went down to do something, and I’m assuming it was to get his phone which was in front of him…”

[4] Swan died within a short time after being shot. The respondents searched the rest of the residence, found drugs and money. They were arrested as they were driving back to Toronto in possession of the stolen articles and the gun.

[5] The preliminary inquiry judge committed the respondents for trial on the charge of second degree murder but discharged them on first degree murder. He concluded there was “no evidence of any plan to kill the victim” and that the evidence was “suggestive of an impulsive murder”.

[6] He rejected the Crown’s “constructive first degree murder” theory. He said:

The evidence indicates that the three accused entered Michael Swan’s bedroom, demanded to know where the drugs and money were, and within a very short period of time of no more than a few seconds, the fatal shot was fired. This falls far short of the threshold established by the Supreme Court in Pritchard.

[7] He concluded that “it cannot be said that Michael Swan was unlawfully confined to the degree required by section 231(5)(e) nor can it be established that the three accused exploited their position of domination over the victim in order to murder him.”

[8] The reviewing judge denied the Crown’s certiorari and mandamus application. She held that the preliminary inquiry judge, in assessing the sufficiency of evidence, was entitled to conclude that “there was simply no evidence of planning and deliberation which would justify a committal on first degree murder.” On the “constructive first degree murder” issue, she held that the preliminary inquiry judge properly concluded that “the shooting and the alleged confinement did not constitute separate acts because of the manner in which the shooting occurred, particularly the timing of the shooting.”

(2) Issues

[9] The Crown submits that the preliminary inquiry judge committed jurisdictional error by choosing between competing inferences about whether the murder was planned and deliberate and by misapplying the law of forcible confinement murder pursuant to s. 231(5)(e). The Crown submits it was an error for the reviewing judge to uphold the preliminary judge’s decision.

(3) Analysis

(a) Planned and deliberate

[10] In our view the Crown misreads the preliminary inquiry judge’s comment that the evidence was suggestive of an impulsive murder. Other passages in the judge’s reasons make clear that he did not weigh competing inferences but rather found there was no evidence of any preconceived plan to commit murder. He said “The Crown submits there was a preconceived plan to kill Michael Swan, but after reviewing all of the evidence presented at this preliminary hearing, I find that there is no evidence of any plan to kill the victim.” He also said:

I have considered all of the evidence presented at this preliminary inquiry and there is no available inference that the three accused had a plan to kill Mr. Swan prior to entering his residence, or a plan to kill if necessary if he did not immediately provide them with the information they were seeking. For a court to draw such an inference based on the available evidence, would amount to that type of speculation and conjecture that is clearly not permissible even at the preliminary inquiry stage.

[11] We would not give effect to this ground of appeal. The preliminary inquiry judge found there was no available inference that would support committal for first degree murder. The evidence that was available was “suggestive of an impulsive murder” and that is why the judge committed the respondents on a charge of second degree murder. The reviewing judge did not err in upholding this part of the preliminary judge’s decision.

(b) “Constructive first degree murder”

[12] Section 231(5)(e) of the Code elevates to first degree any murder where the death is caused while forcibly confining the victim. The Supreme Court, in R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, held that there must be confinement for “a significant period of time”.

[13] There is, however, no minimum period of time during which the confinement must continue. What is a “significant period of time” depends on the circumstances of the case. What is important is that the act of killing must be separate and distinct from the unlawful confinement.

[14] Here, there was evidence that, before McLellan shot Swan, the respondents entered and blocked the bedroom; pointed firearms at the occupants; ordered them to get on the floor on their knees, put up their hands, and put aside their cell phones; and demanded where the money and drugs were. In particular, there was evidence that McLellan said to Swan “I know you’re the drug dealer, you know where it is” and that Swan replied “I don’t know” before McLellan shot him.

[15] It was for the jury to determine what to make of Scott and Tanguay’s estimates of how much time elapsed, whether the confinement lasted for a significant period, and whether McLellan’s shooting constituted a separate criminal act. It seems to us that the preliminary inquiry judge addressed the question of whether Swan was “unlawfully confined to the degree required by s. 231(5)(e)” rather than leaving that question to the jury.

[16] By asking himself the wrong question the preliminary inquiry judge exceeded his jurisdiction. The question of whether McLellan’s shooting of Swan was a separate act committed during an unlawful confinement should have been left to the jury. The preliminary inquiry judge should have turned his mind to whether Barnett and Mullen were a substantial and integral cause of Swan’s death. By finding that the preliminary inquiry judge had not usurped the role of the trier or fact, the reviewing judge erred in law.

(4) Conclusion

[17] The appeal is allowed, the discharges of the respondents on the charge of first degree murder are set aside, and the case is remitted to the preliminary inquiry judge for committal of McLellan on the charge of first degree murder. The cases of Barnett and Mullen are remitted to the preliminary inquiry judge to determine whether there is evidence that their acts were a substantial and integral cause of the death and therefore whether they should be committed for first degree murder.

“M. Rosenberg J.A.”

“R.G. Juriansz J.A.”

Gloria J. Epstein J.A.”

Released: March 25, 2013