WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court File and Parties

Court File No.: Central East - Newmarket 4911-998-12-Y0409-00

Date: 2013-04-03

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

T.C.

Before: Justice Richard Blouin

Heard on: February 5, 6, 7, 8, 12, 13, 14, 20 and 22, 2013

Oral Judgment given: February 22, 2013

Written Reasons for Judgment released: April 3, 2013

Counsel:

• L. McCallum, for the Crown
• B. Shier, for the accused T.C.

BLOUIN J.:

Introduction

[1] T.C., a young person within the meaning of the Youth Criminal Justice Act, is charged that on or about May 13, 2012 he committed first degree murder upon Allen Constance.

[2] Both counsel narrowed the scope of this case so that the only issue to be decided at this preliminary hearing is whether the defendant ought to be committed for trial on first or second degree murder.

[3] At the conclusion of a nine-day hearing, I committed the defendant for trial on the charge laid. I gave brief oral reasons why I found some evidence upon which a reasonable trier of fact could conclude the defendant committed first degree murder. Since the defendant was a young person, where time is of elevated importance, and detained in custody, I told the parties that I would make a ruling that would provide a more structured written judgment later. This is it.

[4] When distilled, the evidence from the witnesses generally established that the defendant disliked the deceased because he was aware that Constance was romantically connected to T.C.'s on-again, off-again girlfriend, A.B. Add to that, the deceased had made threats to the defendant that evening. A number of the witnesses (6) testified they were present for the fatal fight outside a library shortly before 3:00 a.m. on May 13, 2012. This fight had been arranged by the defendant and the deceased by telephone approximately 1.5 hours earlier.

Preliminary Hearing Test

[5] R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21, sets out the test for committal. The question for the preliminary inquiry judge is whether there is any evidence on which a reasonable jury, properly instructed, could convict. Where the prosecution adduces direct evidence of each element of the offence, the accused must be ordered to stand trial. Where the prosecution's case consists of or includes circumstantial evidence, the preliminary inquiry judge must engage in limited weighing of the whole of the evidence including the defence evidence if called, to determine whether a reasonable jury properly instructed could return a verdict of guilty.

[6] A preliminary inquiry judge engages in a limited weighing of evidence where the prosecution's case consists of, or includes circumstantial evidence but does not involve, (a) drawing inferences, (b) assessing credibility, or (c) considering inherent reliability. The judge's task is to decide whether, if the prosecution's evidence were believed, would it be reasonable for a properly instructed jury to infer guilt. Limited weighing involves an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[7] In summary, the task of the preliminary inquiry judge involves an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. The judge need only come to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence. If there is any doubt as to the reasonableness of the inference it should be resolved, short of engaging in speculation, in favour of the Crown.

Planned and Deliberate

[8] The words "planned" and "deliberate", as they are used in s. 231(2) of the Criminal Code, are well understood. In R. v. Widdifield (1961), 6 Crim.L.Q. 152 (Ont.H.C.J.) at 153 Gale J. instructed the jury on the meaning of these terms as follows:

"I think that in the Code "planned" is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you wait an appreciable time once it has been formed.

As far as the word "deliberate" is concerned, I think the Code means that it should also carry its natural meaning of "considered", "not impulsive", "slow in deciding", "cautious", implying that the accused must take time to weigh the advantage and disadvantages of his intended action. That is what, as it seems to me, "deliberate" means.

[9] The Supreme Court of Canada approved this definition of "planned" and "deliberate" in R. v. Nygaard, 51 C.C.C. (3d) 417.

Findings

[10] Although there was not a large window of opportunity for the defendant to plan and deliberate his intent to kill, I found some evidence upon which a jury could conclude just that. The main examples were found in the evidence of the following witnesses.

Ainsley Barata

[11] After spending most of the day of May 12 with the defendant, Ms. A.B. made a connection with the deceased that evening. The defendant made many attempts to reach her cell phone that night. When T.C. phoned Ms. A.B.'s girlfriend, he was able to have the phone turned over to A.B. The defendant said a number of uncomplimentary things to A.B. The deceased at some point grabbed the phone from A.B. and traded insults with the defendant. Then Mr. Constance said to the defendant on the phone, "Why do want me to go there?" and "Ok, I'll meet you there. I'm not a pussy."

[12] Ms. A.B. had this discussion occurring approximately 1:15 a.m. (Another witness, Quinn Valladares – a friend of the deceased, was present and felt that this telephone exchange occurred around 1:00-1:15 a.m.).

[13] Ms. Barata testified that the deceased announced that they were going to the library and that he was going to fight the defendant.

A.C. and T.J.C.

[14] Both brothers were with the defendant the evening of May 12, and into the early morning hours of May 13. After the defendant spoke with the deceased on the phone, A.C. testified that he, the defendant, T.J.C., and S.M. left the house to go to the library for a fight around 3:00 a.m. He observed the defendant with a large, curved dagger. The defendant concealed the weapon in his pants, and then left to go to the library. Austin identified the dagger seized by police (found the next morning in a bush on the property next to the defendant's house) as the dagger the defendant concealed. Before they left for the library the defendant told Austin why they were going, "I'm pissed off. I'm going to deal with this." The defendant was angry before going to the library for two reasons: the deceased was spending time with A.B.; and the deceased made threats to "hit up his mom's house" (meaning the defendant's mother).

[15] T.J. C. heard the defendant say that the deceased, "the guy who A.B. was cheating with", said he was going to hit up the defendant's mother's house, and then our house if we did not come and meet him. This was said somewhere between 2:00 and 3:00 a.m., after the defendant had received a call on his cell phone. After that call, T.J. remembered the defendant to be quiet and that he appeared scared. Most importantly, he observed the defendant pacing back and forth in the hall of his house.

D.R.

[16] D.R. slept at the defendant's house the night of May 12 until the morning of May 13. He was still present in the house when the defendant was arrested there, around 9:00 a.m. At some point in that time period, D.R. was awakened. The defendant told him that, "Some guy threatened to hit my mom's house up." The defendant "seemed pretty angry". D.R. got the impression that the defendant was going to fight the guy. He declined to go to the fight with the defendant, and returned to bed. Later that morning, D.R. was awakened again. When he went into the living room he saw the defendant slumped over with his head in his hands. The defendant said, "I think I hurt this guy pretty bad."

The Weapon

[17] Finally, in addition to the above evidence which provides the time window in which one could conclude planning, and the pacing back and forth in which one could conclude deliberation, the weapon itself is illustrative of planning and deliberation.

[18] D.R. testified that he had seen the murder weapon before in the defendant's room on the floor by his bed. The weapon is a sword or dagger, approximately 18 inches in length, with an ornate handle, dragon iconography, and a long, sharply pointed, curved blade.

[19] Evidence that indicated the defendant, after the phone call 1.5 hours earlier, armed himself with this weapon and concealed it in his pants, before he left the house to attend the library, goes some distance in establishing this scenario to have been thought out. This is not a fact situation where a fight breaks out, and someone pulls out a pocket knife that they carry with them regularly.

Conclusion

[20] In my view, the evidence above could be relied upon, if believed, to allow a reasonable jury to reach a conclusion that the defendant committed a planned and deliberate murder. Accordingly, he must be committed to trial on first degree murder.

Released: April 3, 2013

Signed: Justice Richard Blouin