W A R N I N G

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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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(4) [Repealed, 2005, c. 32, s. 18(2).]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., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scott, 2013 ONCA 286

DATE: 20130501

DOCKET: C56323

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradford Scott

Appellant

Richard Litkowski, for the appellant

Amy Alyea, for the respondent

Heard: April 25, 2013

On appeal from the order of Justice John A. McMunagle of the Superior Court of Justice, dated October 31, 2012, dismissing the application for certiorari and upholding the order of Justice Rommel G. Masse of the Ontario Court of Justice, dated January 12, 2012, committing the appellant to stand trial on a charge of second degree murder.

ENDORSEMENT

[1] JA was stabbed to death during a home invasion drug “rip-off” robbery. The Crown alleged that the appellant was a party to the murder because he facilitated entry to the victim’s apartment building by the two intruders, NT and PM.

[2] The appellant was not present during the robbery that led to JA’s death.

[3] The appellant was committed to stand trial on a charge of second degree murder after a contested preliminary inquiry. He stands jointly charged with PM. The two co-accused were charged with first degree murder. NT plead guilty to manslaughter and testified during the preliminary inquiry.

[4] The appellant brought an application for certiorari to quash his committal for second degree murder. In reasons dated October 31, 2012, his application was dismissed.

[5] He appeals that dismissal.

[6] We would allow the appeal, quash the second degree committal and substitute a committal on a charge of manslaughter.

ANALYSIS

[7] The appellant makes a number of submissions as to why the reviewing justice erred in failing to find that the preliminary inquiry judge made jurisdictional errors in committing the appellant on a charge of second degree murder. As in our view the appellant succeeds on the issue of the subjective mens rea for party liability under s. 21(2) of the Criminal Code, we will deal only with that issue.

[8] The reviewing judge carefully and correctly set out the law on this matter, noting that an accused will only be guilty of murder as a party, pursuant to s. 21(2), if he foresaw that the murder was a probable consequence of carrying out the common purpose, in this case the robbery. He referred to this court’s decision in R. v. Laliberty (1997), 1997 CanLII 2992 (ON CA), 117 C.C.C. (3d) 97, at para. 36, in which the necessary mens rea for the purposes of s. 21(2) is stated to be the requirement of “actual foresight or actual knowledge that [the principal offender] would stab the deceased with the intent to kill him in carrying out the robbery of the deceased”. He also referred to this court’s decision in R. v. Ferrari, 2012 ONCA 399, [2012] O.J. No. 2649, at para. 61, which described subjective foresight as the requirement that the non-participant “knew that the principal offender would probably commit murder in carrying out the unlawful purpose”.

[9] The appellant submits that while there was some evidence upon which a properly instructed jury could find that the appellant possessed the subjective foresight that harm to the deceased might occur during the course of the robbery, there was no admissible evidence adduced before the preliminary inquiry judge on which he could conclude that the appellant had the subjective foresight that the principal offender would kill the deceased in carrying out the robbery.

[10] We agree.

[11] Certainly, a home invasion robbery is inherently dangerous and can give rise to violence, which could ultimately result in harm to the victims. And, there was evidence that the appellant knew of PM’s violent propensities. But there was no admissible evidence at the preliminary inquiry that the appellant knew that NT and PM went to the robbery with a weapon and he was not present at the robbery itself.

[12] The process of drawing inferences from the evidence is not the same as speculating. In this case, the evidence at the preliminary inquiry, fully considered in the context of a drug “rip off” robbery, did not provide some evidence of the subjective mens rea requirement for second degree murder.

[13] Accordingly, the appeal is allowed, the committal for second degree murder is quashed and a committal on a charge of manslaughter is substituted.

“E.E. Gillese J.A.”

“M. Tulloch J.A.”

“P. Lauwers J.A.”