COURT FILE No.:

DATE: 2013·February·21

Citation: R. v. Barrientos, 2013 ONCJ 799

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ANDY BARRIENTOS and JEREMY SIRUR-YEE

Before Justice Heather McArthur

Heard on August 13, 14, 15, 16, 20, 21, 22, 23, 24, 2012

October 22, 23, 24, 25, 26, 29, 30 2012

November 6, 2012; January 9, 11, 2013

Reasons for Committal released February 21, 2013

Mr. J. Callaghan and Mr. B. Cohen................................................................ for the Crown

Mr. S. Fishbayne..................................................................................... for Andy Barrientos

Mr. S. Stauffer....................................................................................... for Jeremy Sirur-Yee

McArthur J.:

Introduction

[1] Mr. Andy Barrientos and Mr. Jeremy Sirur-Yee are charged with second degree murder. Following the completion of the evidence at the preliminary hearing, Crown counsel advised that they would be seeking committal on the more serious charge of first degree murder.[^1]

[2] The Crown theory, in summary, is that the two defendants went to a small house party with a mutual friend, Nigel Alleyne-Orange. The deceased, Pamela Ariza (also known as Chico), was there with his girlfriend, Marizol Peraza[^2]. Mr. Barrientos had at one time been involved with Peraza. They had had a falling out a few years earlier and had not seen each other since. At some point, the host of the party, Stiven Barak, took out a gun, showing off with it. The gun was passed around. When Ariza had the gun, he pointed it in the direction of Mr. Barrientos and Alleyne-Orange. The two defendants took affront to this and decided to kill Ariza in revenge. The two men hatched a simple plan over the course of about eleven minutes: take the gun from Barak and shoot Ariza. When Barak asked if anyone wanted to go with him on a “marijuana run” they were presented with an opportunity to put their plan into action. They went outside with Barak, and within a few minutes viciously attacked him, punching and kicking him in the head. Mr. Barrientos grabbed the gun and ran over to the window of the apartment, where Ariza had been sitting for most of the night. He shot through the window, hitting Ariza in the back and killing him. Moments before the shooting, Mr. Sirur-Yee yelled out, “Just shoot him”, encouraging or inciting Mr. Barrientos to follow through with their plan.

[3] Counsel for Barrientos concedes that there is some evidence that Mr. Barrientos shot Ariza and that he should be committed for manslaughter. He submits, however, that there is insufficient evidence to commit on either second or first degree murder. Counsel for Mr. Sirur-Yee argues that there is insufficient evidence to commit his client on any charge.

[4] Thus, the issues to be determined are as follows:

Issue One: Is there sufficient evidence to commit Mr. Barrientos for second degree murder?

Issue Two: Is there sufficient evidence to commit Mr. Sirur-Yee for manslaughter or second degree murder?

Issue Three: If so, is there sufficient evidence of planning and deliberation to commit either Mr. Barrientos or Mr. Sirur-Yee for first degree murder?

The Applicable Legal Framework

[5] Section 548 of the Criminal Code mandates a committal if there is “sufficient evidence” to put the accused on trial. The test for sufficiency is the Sheppard test: any evidence upon which a reasonable jury, properly instructed, could return a guilty verdict. (United States v. Sheppard, 1976 CanLII 8 (SCC), [1976] S.C.J. No 106)

[6] The test for committal is the same whether the evidence is direct or circumstantial. The nature of the preliminary inquiry justice’s task varies, however, depending on whether the Crown’s case is based entirely on direct evidence or whether the Crown’s case relies on circumstantial evidence. Where there is direct evidence of all of the essential elements of the offence, the task of the preliminary hearing justice is straightforward: there must be a committal for trial. The task is more complicated when the Crown relies on circumstantial evidence. (See R. v. Arcuri, [2001] SCC 54 at para.22-23)

[7] Where the Crown’s case includes circumstantial evidence, the justice must engage in a limited weighing of the whole of the evidence, including any defence evidence, in order to determine whether a reasonable jury properly instructed could return a verdict of guilty to the charge alleged or to any other offence. While this weighing does not require consideration of the inherent reliability of the evidence itself, the preliminary inquiry justice must assess the reasonableness of the inferences that may be drawn from the circumstantial evidence. Where the Crown relies on circumstantial evidence, the question is whether the elements of the offence which the Crown has not proven by direct evidence may reasonably be inferred from the circumstantial evidence. To answer this question, the justice is required to engage in a limited weighing of the evidence, because with circumstantial evidence there is, by definition, an inferential gap between the evidence adduced and the fact to be established. The issue is whether the evidence is rationally capable of supporting the inferences the Crown seeks to have drawn from it. It is for the jury to determine if the inferences should actually be drawn, but it is for the preliminary inquiry justice to determine whether the inferences alleged may legitimately be drawn. If the evidence is not rationally capable of supporting the inferences the Crown seeks to have drawn, it is insufficient to warrant committal. (R. v. Arcuri, supra)

[8] As noted by Ducharme J. in R. v. Munoz, 2006 CanLII 3269 (ON SC), [2006] O.J. No 446 (Ont.S.C.) at para. 29, courts have repeatedly cautioned against confusing a reasonable inference with mere speculation. Where an inferential gap exists, it can only be properly overcome by evidence. At para. 31 he explained that “...the requirement of reasonable or logical probability is meant to underscore that the drawing of inferences is not a process of subjective imagination, but rather is one of rational explication. Supposition or conjecture is no substitute for evidence and cannot be relied upon as a basis for a reasonably drawn inference.” To put it another way: a leap in logic can never cross the inferential gap.

[9] That said, the courts have also made clear that to find an inference reasonable, that inference does not need to be “compelling” (R. v. G. W., 1996 CanLII 427 (ON CA), [1996] O.J. No. 3075 (C.A.) at para. 62) or “easily drawn” (R. v. Katwaru, [2001] O.J. 204 (Ont.C.A.) at paras. 39-41) Moreover, any competing inferences are for the jury to resolve; it is jurisdictional error for a preliminary hearing judge to weigh competing inferences or choose among them. (R. v. Campbell, 1999 CanLII 2372 (ON CA), [1999] O.J. 4041 (Ont. C.A.) at 165; R. v. Montour, [2002] O.J. No. 141 (Ont. C.A.) at paras. 3-5) Where more than one inference can be drawn from the evidence “only the inferences that favour the Crown are to be considered”. (R. v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74, at para. 18)

[10] In R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, McLachlin J. stressed the relationship between the sufficiency test and the principle of reasonable doubt.[^3] She explained at para. 30:

First, “sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.

[11] Recently, in R. v. Turner, 2012 ONCA 570 at para. 16, the Ontario Court of Appeal referred to McLachlins J.’s comments and reminded courts that the sufficiency of the evidence cannot be assessed without reference to the ultimate burden on the crown to prove the case beyond a reasonable doubt.

[12] With these legal principles kept in mind, I now turn to the issues to be determined.

Issue One: Is there sufficient evidence to commit Mr. Barrientos for second degree murder?

[13] Crown counsel argues that Mr. Barrientos should be committed for second degree murder pursuant to either s.229(a)(i) or s.229(a)(ii) of the Criminal Code.[^4] With respect to the former, the Crown argues the Mr. Barrientos knowingly, from a close distance, shot at a vital part of Ariza’s body. Thus, the Crown argues, a reasonable inference can be drawn that Mr. Barrientos intended to kill him. In making this submission, the Crown relies on the following comment of Cory J. in R. v. Bains and Grewal, [1985] O.J. No 41 (Ont.C.A); leave to appeal refused [1985] S.C.C.A. No 158:

...when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim. No other reasonable conclusion can be reached: a deadly weapon was used in the very manner for which it was designed - to cause death.

With respect to the latter route to committal, the Crown argues that, at the very least, a reasonable inference can be drawn that by shooting at a window where he knew Ariza was seated, from a close distance, Mr. Barrientos intended to cause such bodily harm that he knew that death was the likely result and he was reckless whether death ensued.

[14] Defence counsel counters that the shot was from ten to twelve feet away, not the close range contemplated in R. v. Bains and Grewal, supra. He points to the fact that Ariza did not sit at the window ledge for the entire party. As such, he argues that his client would not know that Ariza was sitting at the window ledge at the time he shot the gun. Moreover, he argues that given the dim lighting in the apartment and the vertical blinds in the window, his client would not have been able to see that Ariza was sitting in the window ledge, let alone target a vital body part. The fact that another party goer, Takeya Singh, was shot in the knee belies the position that Ariza was targeted. He also points to the evidence of Vladimir Lungu who said that the shooter appeared to get distracted from beating Barak by a noise coming out of the window. This, he says, could lead to an inference that the shooting was not an intentional murder; rather it was a response to something happening at the window. He relies on all of the above points in submitting that his client should not be committed pursuant to either s.229(a)(i) or s.229(a)(ii).

[15] I find, however, that the defence submissions invite me to do that which I am not entitled to do: weigh the evidence and choose among competing inferences. While other inferences may be available on the evidence, where more than one inference is available only the ones that favour the Crown are to be considered. For example, the defence argument that the shooter was ten to twelve feet away does not take into consideration the evidence of Massimo Marchegiani. He testified that the shooter was on the sidewalk, near the grass area. He also said that the shooter was not too far away from the gateway or fence that separated the grass from the sidewalk. A number of photos in Exhibit 1, including A2, A6 and A9, illustrate where the sidewalk, fence and grass are in relation to each other and to the building. Officer Sutherland testified that the distance from the edge of the building to the fence was 67 inches. Based on this evidence, the jury could find that the shooter was just over five and a half to seven feet from the window.[^5]

[16] By way of another example, the defence points to the evidence of Singh and Barak to suggest that Ariza moved around during the party. The defence also relies on Peraza’s evidence that Ariza moved around and at one point went somewhere to discuss the gun with other partygoers. Peraza, however, also said that that Ariza was on the window ledge for most of the evening.[^6] She testified that when Mr. Barrientos left the apartment, Ariza was still seated in the same position. Based on her evidence, the jury could infer that Ariza was sitting on the window ledge when the defendants went outside. Further, it would be open to the jury to infer that the defendants knew that Ariza was sitting on the window ledge when they went outside with Barak. The fact that Mr. Barrientos shot into the apartment knowing that his friend Alleyne-Orange was still inside, could also support the inference that when he shot into the window, he knew that Ariza was still seated on the window ledge and was targeting him.

[17] In the same vein, defence counsel argues that, although photos taken by the police (such as B3 from Exhibit 1) show gaps between the slats of the vertical blinds, the blinds could have been moved by Peraza when she called out to the police for help, or by the force of the bullets passing through. When shown B3, Peraza said that the photo depicted the room “exactly the way it was” on the night that Ariza was shot. In cross-examination, when asked if she pulled back or opened the blinds and spoke to the officers she responded, “yea”. She quickly followed that response, however, by saying, “I didn’t go and open the curtains and try and look for someone. All I just did was to go through the window, scream out what I had to say and ran back to Chico.”[^7] The defence argues her evidence shows that she pulled back the blinds to shout to the officers; the Crown argues that it supports the opposite conclusion. It may be that her evidence on this point is open to interpretation, but it is for the jury to determine what inferences they draw from her evidence. As I consider the totality of her testimony, I find that the jury could reasonably infer that there were gaps between the vertical blinds on the night of the shooting.

[18] Similarly, defence counsel argues that given the dim lighting conditions, Ariza’s silhouette would not be visible through the blinds. While the lighting was dim, however, there were some lights on in the apartment. Moreover, Singh testified that the television was giving off light. Photograph B3 of Exhibit 1 shows the position of the television in relation to the window. It would be open to the jury to infer that the lighting conditions that night were such that shadow and light would be visible through the blinds. The jury could further reasonably infer that this would allow Mr. Barrientos to determine that Ariza was still sitting at the window ledge. It would be further open to the jury to find that Mr. Barrientos was targeting a vital part of Ariza’s body, given his position seated on the window ledge, with his back exposed to the window.

[19] Defence counsel’s submissions regarding the import of Lungu’s evidence that the shooter appeared to be distracted by a noise coming out of the window, or the fact that Singh was shot, also amount to weighing competing inferences. The jury could accept Lungu’s evidence and find that the shots were a reaction to some perceived threat at the window. The fact that Singh was shot could lead the jury to infer that Mr. Barrientos was indiscriminately firing in the window, without the intention required for murder pursuant to s. 229(a)(i) or (ii). Conversely, the jury might find that Singh’s shooting reflects the fact that Mr. Barrientos was drinking and smoking marijuana and was thus a bad shot. Or given the evidence of Peraza that Singh was shot after Ariza, the jury might find that when Ariza leapt off the ledge after being shot, it became more difficult for Mr. Barrientos to accurately target his remaining shots. There are any number of different inferences that are potentially open. These competing inferences are for the jury to resolve.

[20] In conclusion on this point, there may well be other inferences that could be drawn from the evidence. Taking the Crown’s case at its highest, however, the jury could reasonable find the following:

• Ariza spent most of the night seated on the window ledge.

• When the defendants went outside, Ariza was still seated at the window ledge where he had been for the greater part of the night.

• Mr. Barrientos knew that Ariza spent most of the night on the window ledge and was aware that he was still seated there when he went outside.

• Once outside, given the lights in the apartment, including the light coming off the television, and the positioning of the blinds, Mr. Barrientos would have been able to see that Ariza was still seated on the window ledge.

• Mr. Barrientos shot at Ariza from a distance of just over five and a half to seven feet.

• Barrientos was targeting Ariza’s torso or head, the areas that would be exposed when he was seated on the window ledge.

[21] Based on the above, I find that it would be open to a properly instructed jury, acting reasonably, to find that Mr. Barrientos intended to kill Ariza. In R. v. Bains and Grewall, supra, one of the victims was shot from a distance of five to seven feet away.[^8] Yet even at this distance, the court had no difficulty in inferring an intention to kill. Moreover, in that case, Cory J.A. opined that if a shot were fired at a vital body part from a close distance, then an intention to kill was “the only rational inference” and “[n]o other reasonable conclusion can be reached”. As a preliminary inquiry justice, I am not required to determine if the inference sought by the Crown is the only rational inferences. Rather, the question before me is could the jury members reasonably draw that inference? I find that they could.

[22] Based on the available inferences set out above, I also find that it would be open to the jury to find that Mr. Barrientos intended to cause such bodily harm that he knew was likely to cause death and was reckless whether death ensued. Firing shots into a window, knowing that someone is sitting on the window ledge, from five and half to seven feet away, is sufficient to support a committal pursuant to s.229(a)(ii).

Issue Two: Is there sufficient evidence to commit Mr. Sirur-Yee for manslaughter or second degree murder?

[23] The Crown argues that there is some evidence upon which a properly instructed jury acting reasonably could find that Mr. Sirur-Yee either aided and/or abetted[^9] Mr. Barrientos in committing the murder of Ariza or incited him to do the same[^10]. As such, the Crown argues Mr. Sirur-Yee should be committed for second degree murder. The Crown relies on the evidence of Brenda Mozzone that she heard a voice shout, “Just shoot him”, three to five seconds before the shots rang out. The jury could infer, says the Crown, that Mr. Sirur-Yee yelled out with the intention of encouraging or inciting Mr. Barrientos to murder Ariza.

[24] Defence counsel on behalf of Mr. Sirur-Yee says that the inferences the Crown seeks to have drawn amount to speculation and that the evidence is insufficient to commit Mr. Sirur-Yee for manslaughter, let alone for murder. No reasonable inference can be drawn that Mr. Sirur-Yee was the individual who shouted “Just shoot him”. Moreover, if an inference could be drawn that Mr. Sirur-Yee was responsible for the comment, the only reasonable inference is that he was asking Mr. Barrientos to shoot Barak, whom Mr. Sirur-Yee was still beating.

[25] I find, however, that the jury could reasonably infer that Mr. Sirur-Yee shouted “Just shoot him”. I accept that there may be other inferences. Given that Mozzone is the only one who heard the words, perhaps she is mistaken. Or, maybe Barak yelled the words, in the hopes that someone inside the apartment would hear and shoot his attacker. It could be that someone inside the apartment, seeing Barak being beaten and believing that he still had the gun, shouted it out. But it is open to the jury to infer that Mr. Sirur-Yee was the one shouting the words.

[26] Moreover, the jury could reasonably infer that Mr. Sirur-Yee did so in order to encourage or incite Mr. Barrientos to shoot Ariza. As set out above, the jury could infer that both defendants knew that Ariza was on the window ledge for most of the night and that he was still there when they went outside. Based on Mozzone’s evidence regarding timing, the jury could reasonably infer that Mr. Barrientos was close to the window when Mr. Sirur-Yee shouted “Just shoot him”. Further, Mozzone was on the fourth floor. From this, the jury could reasonably infer that Mr. Sirur-Yee shouted the words out loudly enough to ensure that Mr. Barrientos would hear him from his position near the building. Based on the available inferences, I find that the jury could reasonably infer that Mr. Sirur-Yee shouted the words to encourage or incite Mr. Barrientos to shoot, knowing that Mr. Barrientos intended to kill Ariza or to cause such bodily harm that he knew that death was likely to result. I agree with defence counsel that another inference could be drawn that Mr. Sirur-Yee was shouting “Just shoot him” in the hopes that Mr. Barrientos would shoot Barak. This may well be the stronger inference. But that is not the question. The only issue is whether the inferences which the Crown seeks to have drawn can reasonably be drawn. I find they can. As a result, I find that there is sufficient evidence to commit Mr. Sirur-Yee for second degree murder.

Issue Three: Is there sufficient evidence of planning and deliberation to commit either Mr. Barrientos or Mr. Sirur-Yee for first degree murder?

[27] The Crown argues that there is evidence from which a properly instructed jury could reasonably conclude that the defendants jointly participated in the planned and deliberate murder of Ariza. The classic definition of “planned and deliberate” was set out in R. v. Widdifield (1963-4), 6 Crim.L.Q. 152-153-4, and approved by Cory J. in Nygaard and Schimmens, 1989 CanLII 6 (SCC), [1989] S.C.J. No. 110, at para. 18 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 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 can wait an appreciable time to do it once it has been formed.

As far as the word “deliberate” is concerned, I think that 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 advantages and disadvantages of his intended action.

[28] Here, the Crown argues that on the evidence the jury could find that the two defendants came up with a simple plan to murder Ariza: take the gun from Barak and shoot Ariza. In support of this contention, the Crown says that the jury could find that Ariza pointed the gun towards Mr. Barrientos and Alleyne-Orange. The jury could reasonably infer that Mr. Barrientos took affront to this. This is particularly so in light of the fact that Ariza was at the party with Peraza, a woman with whom Mr. Barrientos had previously been involved, and with whom he had had a falling out a few years before. The jury could also infer that Mr. Sirur-Yee took affront to the gun being pointed at his friend Alleyne-Orange and acquaintance, Mr. Barrientos. After the gun was pointed, Mr. Barrientos and Mr. Sirur-Yee spoke together alone. The two men had approximately ten minutes to discuss what they would do. This was sufficient time to allow them to develop a plan, and sufficient time to weigh the advantages and disadvantages of their intended course of action. They had the opportunity to put their plan into effect when Barak asked them if they wanted to go on a “marijuana run” with him. One minute later, they went outside with Barak, and within a few minutes were viciously assaulting him. Barrientos grabbed the gun from Barak but did not shoot him: Ariza was the target, not Barak. As planned, Mr. Barrientos ran to the window, where he knew Ariza was sitting. Mr. Sirur-Yee shouted out, “Just shoot him”, encouraging or inciting Mr. Barrientos to follow through with their plan. Mr. Barrientos then put their plan into effect, shooting into the window and killing Ariza.

[29] Defence counsel counter that the inferences the Crown seeks to have drawn are not reasonable, rather they amount to impermissible speculation. Counsel forcefully argue that the Crown submissions are based on supposition and conjecture, not evidence. I have considered this matter at great length. For the following reasons, I have determined that while the inferences the Crown seeks to have drawn may be weak, they are inferences open to the jury.

[30] The defence argues that the gun was not pointed at Mr. Barrientos and Alleyne-Orange, rather it was waved in their direction, as if to the music. But on this point, Alleyne-Orange, said, “...I don’t know if it was because of the music or what the individual was thinkin’ but it was pointed in my direction.”[^11] Given his position on the couch, Mr. Barrientos was closer to the gun than Alleyne-Orange. On the evidence, it would be open to the jury to infer that the gun was pointed directly and intentionally at Mr. Barrientos.

[31] The defence submits that there is no evidence that Mr. Barrientos was angry about having the gun pointed at him. Nor is there evidence to suggest that Mr. Sirur-Yee was angry that the gun was pointed at the other two men. Alleyne-Orange, however, said that Mr. Barrientos and Mr. Sirur-Yee looked “freaked out”. The phrase “freaked out” is open to a number of different interpretations. It could mean they were afraid, discomfited, surprised - it could also mean they were angry. It will be up to the jury to determine this issue.

[32] The defence stresses that the two men would have no motive. In large part, however, this argument is based on the above two submissions. That is, if the gun was not pointed as alleged by the Crown and if the defendants were not angry, then they would have no motive. I have already determined that the jury could reasonably infer that the gun was pointed at Mr. Barrientos and Alleyne-Orange and that the defendants were angry about that. These may not be compelling inferences, but they are open to the jury. Whether or not an inference can be drawn that this provided a motive for murder is something to be determined by the jury.[^12]

[33] The defence asserts that the Crown estimate of eleven minutes for planning and deliberation is not supported by the evidence. In particular, the defence points to the evidence of Peraza who said that Mr. Barrientos was talking quietly to “two black guys” after the gun was flaunted. Alleyne-Orange explicitly denies that Mr. Barrientos said anything to him about the gun, or any plan to murder. Putting those two pieces of evidence together, the defence argues that the defendants could not have planned a murder, since they were speaking with Alleyne-Orange and he did not hear anything about it. The jury, however, is entitled to accept some, none or all of a witness’s evidence. Alleyne-Orange also said that he did not have conversations with either Mr. Barrientos or Mr. Sirur-Yee, which would conflict with Peraza’s recollection that she saw them talking together. In any event, Barak recalled seeing Mr. Barrientos and Mr. Sirur-Yee speaking together by the front door. They appeared as if they were unsure of what to do and opened and closed the door a number of times. The jury could reasonably infer from Barak’s evidence that the two men were formulating their plan when they were talking privately by the door.

[34] In a similar vein, the defence points to how quickly events unfolded once the defendants and Barak went outside. There is a time frame of approximately five and a half to six minutes from the time they go outside to the 9-1-1 call. Some of this time was accounted for by smoking the cigarette and small talk. Barak said that the sound of the shots came “seconds” after the gun was taken from him. Marchegiani estimated that the gun was fired six or seven seconds after the shooter started to run towards the building. The defence thus argues that there was insufficient time for planning and deliberation. This argument, however, is premised on the underlying assumption that the two defendants did not plan and deliberate while still in the apartment. As set out in the preceding paragraph, there is evidence from which the jury could reasonably infer that they formulated their plan and deliberated on it in the approximately eleven minutes from the time the gun was pointed, to the time that they went outside. If the jury draws that inference, then the rapidity with which events unfolded outside could support the inference that the two defendants were putting their plan into action.

[35] The defence, however, argues that the Crown theory is implausible, since, according to Barak, he invited himself along to have a cigarette with the defendants. Again, however, the jury can accept some, none or all of a witness’s evidence. Alleyne-Orange testified that Barak asked if anyone wanted to go with him for marijuana about ten minutes after the gun was put away. The jury could accept that Barak saw the two defendants speaking together by the door but reject his evidence regarding the cigarette. The jury could instead find that the two defendants invited themselves to go out with Barak for the marijuana. The jury could infer from these facts that at the time the two defendants were speaking at the door, they were deliberating and planning to get the gun from Barak to shoot Ariza. Unsure as to the best way to accomplish their plan, Barak presented them with the opportunity they were looking for when he asked if they wanted to go on the marijuana run with him. They then had a further minute to deliberate and plan before they left to go outside with Barak.

[36] The defence also submits that the two defendants would have no way of knowing that Barak had the gun. As such, it cannot reasonably be inferred that they planned to disarm him in order to murder Ariza. They point to the fact that Barak said that the two defendants would have no reason to believe that he had a gun on him. Barak, however, denies that he took the gun out and flaunted it. Thus, the jury would have every reason to reject his evidence that the defendants would not know he had a gun. The defence also points to the evidence of Alleyne-Orange, who said that Ariza was the last person he saw with the gun and that he only assumed that Ariza passed the gun to someone else. Thus, the defence argues, Ariza was the last person seen with the gun. Pereza, however, testified that Barak was flaunting the gun in front of Mr. Barrientos and Mr. Sirur-Yee. When he was done, she saw him put the gun back in his pants. Based on her evidence, the jury could infer that Mr. Barrientos and Mr. Sirur-Yee also saw Barak put the gun back into his pants. Moreover, there is the surveillance video. Barak testified that he kept the gun on his left side.[^13] With respect to his movements on the video at 52:45[^14], Barak said he was pulling his gun up higher with his left hand. In a similar fashion, when Barak exits the building with the two defendants at 1:12:51-1:12:53 his left arm appears pressed against the side of his body. Based on his evidence and the surveillance video, the jury could reasonably infer that Barak positioned himself in a way which made it clear that he still had the gun.

[37] The defence further argues that it is implausible that the two defendants, who were unarmed, would plan to try to take a loaded gun. They point to the fact that there was no verbal reference to the gun before or during the beating to support the argument that the defendants did not plan to take the gun. But the fact that Barak was attacked from behind, along with the viciousness of the beating, could lead the jury to reasonably infer that the defendants were trying to incapacitate him so that they could get the gun. The jury could reasonably infer that the defendants did not say anything about the gun as they did not want to alert Barak to their plan. Rather, they intended to beat him such that he would be incapable of resisting them when they grabbed the gun.

[38] The defence also submits that the beating of Barak leads to an inference that there is a lot more to the story than he is letting on. That is, something happened outside that caused the two defendants to become so infuriated with Barak that they beat him to the extent they did. That may well be an inference open to the jury. But as set out in the previous paragraph, the jury could also infer that the beating was calculated to incapacitate Barak in order to get the gun to murder Ariza. Further, the fact that Barrientos did not shoot Barak, but rather ran to the window and shot Ariza, could support an inference that Ariza was the pre-selected target. (See, R. v. Charlery, (O.C.J.) unreported, May 13, 2012, at page 12) As noted above, an inference could be drawn that Mr. Sirur-Yee shouted out “Just shoot him” in relation to Ariza. A jury could further reasonably infer that Mr. Sirur-Yee yelled this out to encourage or incite Mr. Barrientos to follow through with their plan and kill Ariza.

[39] While some of the inferences that the Crown asks to have drawn may be weak, I find that the jury could reasonably find the following:

• Ariza pointed the gun at Mr. Barrientos and Alleyne-Orange.

• The two defendants were “freaked out” or angry about this.

• In the ten minutes following the gun being pointed, the two defendants spoke privately by the door.

• They knew that Barak had the gun.

• During the time that they spoke privately, they considered and weighed their course of action and formulated a plan to get the gun from Barak and use it to kill Ariza.

• When Barak invited them to go with him on a marijuana run, they had the opportunity to put their plan into action. They had a further minute to plan and deliberate before going outside with Barak.

• Within a few minutes of being outside, the two defendants attacked Barak in an attempt to incapacitate him and get the gun.

• After grabbing the gun, Mr. Barrientos did not shoot Barak, the man he had been beating, rather, he ran to the window, where he knew Ariza was sitting.

• The gun was fired six or seven seconds after Mr. Barrientos started to run to the window.

• Mr. Sirur-Yee shouted, “Just shoot him” in an effort to encourage or incite Mr. Barrientos to follow through with their plan. Three to five seconds after Mr. Sirur-Yee shouted out, Mr. Barrientos shot and killed Ariza.

[40] Based on the totality of the evidence, I find it would be open to a properly instructed jury, acting reasonably, to find that the defendants committed a planned and deliberate murder. That is not to say that the inferences in support of first degree murder are strong or particularly compelling. Indeed, based on this evidence, the jury may well reach a different verdict. But my task is not to determine if the jury should or would reach a verdict of first degree murder, only if they reasonably could. On the evidence before me, I find they could

Conclusion

[41] There is some evidence upon which a properly instructed jury acting reasonably could find that Mr. Barrientos and Mr. Sirur-Yee committed a planned and deliberate murder. As a result, both defendants are committed to stand trial for first degree murder.

Date: February 21, 2013

Signed: “Justice Heather McArthur”

[^1]: Mr. Barrientos and Mr. Sirur-Yee were also charged with attempt murder in relation to the shooting of Takeya Singh. The Crown has advised that they are not seeking committal on this count.

[^2]: Pamela Ariza lived her life as a man and the other party goers all believed that she was a man. This is important in understanding the Crown argument regarding the inferences that can be drawn from the comment “Just shoot him”. As a result, for the purposes of these reasons, I will refer to the deceased as a male.

[^3]: In Arcuri, supra, a unanimous Supreme Court discussed the task of the preliminary inquiry justice when assessing circumstantial evidence. In order to have a full appreciation of the principles articulated in Arcuri, however, it is helpful to review the judgment of McLachlin, J. (as she then was), in dissent in R. v. Charemski 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679. In Charemski, McLaughlin, J. outlined in detail the test the preliminary inquiry justice must apply when the Crown relies on circumstantial evidence. In Arcuri, the unanimous court made it clear that the majority in Charemski did not disagree with McLaughlin, J.’s articulation of the appropriate test. (See R. v. Arcuri, supra, at para. 27-28)

[^4]: Section 229(a) of the Criminal Code provides that culpable homicide is murder when the person who causes the death of a human being (i) means to cause his death or (ii) means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues.

In R. v. Nygaard and Schimmens [1989 CanLII 6 (SCC)](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii6/1989canlii6.html), [1989] S.C.J. No 110, the Supreme Court defined recklessness as being the attitude of one who is aware of the danger that the prohibited conduct could bring about, yet nevertheless persists in that conduct despite the knowledge of the risk. In the context of s. 229(a)(ii), the defendant must intend to cause the gravest of bodily harm that is so dangerous and serious that he knows it is likely to result in death and yet persist in that conduct despite the knowledge of the risk. 

In R. v. Cooper, [1993 CanLII 147 (SCC)](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii147/1993canlii147.html), [1993] S.C.J. No. 8, the Supreme Court once again considered the mens rea for murder pursuant to [s. 229(a)(ii)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec229_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html). The Court held that the requisite intent under s.229(a)(ii) represented only a slight relaxation of the intention required for an intentional killing under s.229(a)(i). There must be both subjective intent to cause bodily harm and subjective knowledge that the bodily harm is of such a grave nature that it is likely to result in death. It is not sufficient that the defendant foresee simply a danger of death. The defendant must foresee a likelihood of death flowing from the bodily harm caused.

[^5]: Vladimir Lungo and Ala Aculo testified that they saw the shooter run so close to the building that due to their inability to stick their head out beyond the window screen, they lost sight of him for a moment. This could also support an inference that the shooter was fairly close to the window.

[^6]: For example, see evidence of Marizol Peraza from August 20, 2012, pp. 25, 27, 37. In her re-examination on August 22, Peraza also testified that while Ariza poured some shots for Mr. Barrientos and others at the beginning of the night, after that, Ariza sat with her.

[^7]: See evidence of Marizol Peraza from August 20, 2012, pp.22, 60-61

[^8]: The trial judge accepted the evidence of a witness who said that Grewall shot Constable Christopher Fernandez’s head from a distance of five to seven feet away. Cory J.A. based his analysis on this finding of fact.

[^9]: Section 21(1) of the Criminal Code provides:

Everyone is a party to an offence who

(a) actually commits it:

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

To abet within the meaning of s.21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed. (R. v. Greyeyes, [1997 CanLII 313 (SCC)](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii313/1997canlii313.html), [1997] 2 S.C.R. 825 at para.26)

The requisite intent for an aider or abettor to murder pursuant to either [s.21(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec21subsec1_smooth)(b) or (c) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), was described by the Supreme Court in R. v. Kirkness, [1990 CanLII 57 (SCC)](https://www.canlii.org/en/ca/scc/doc/1990/1990canlii57/1990canlii57.html), [1990] S.C.J. No.119 as follows: 

 In the case of an accused who aids or abets in the killing of another, the requisite intent that the aider or abettor must have in order to warrant a conviction for murder must be the same as that required of the person who actually does the killing. That is to say, the person aiding or abetting the crime must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not. If the intent of the aiding party is insufficient to support a conviction for murder, then that party might still be convicted of manslaughter if the unlawful act which was aided or abetted is one he or she knows is likely to cause some harm short of death. 

More recently, in R. v. Briscoe, [2010 SCC 13](https://www.canlii.org/en/ca/scc/doc/2010/2010scc13/2010scc13.html), [2010] S.C.J. No 13 at para. [18](https://www.canlii.org/en/ca/scc/doc/2010/2010scc13/2010scc13.html#par18),Charron J. explained that: 

 ....The perpetrator’s intention to kill the victim must be known to the aider or abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with the knowledge of the perpetrator’s intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said the aider and abettor must intend that the principal offence be committed.” 

[^10]: Section 22(1) and 22(3) of the Criminal Code provide:

s.22(1): Everyone who counsels another person to be a party to an offence is a party to every offence that the other person commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of that counselling.

s.22(3): For the purposes of this Act, “counsel” includes procure, solicit or incite.

Incite has been defined as to urge, spur on, stimulate or instigate someone to do something. (See R. v. Grossman, [1994] O.J. No. 4078 at para. 4 (Ont.S.C.J.); R. v. Hamilton, [2005 SCC 47](https://www.canlii.org/en/ca/scc/doc/2005/2005scc47/2005scc47.html), [2005] S.C.J. No 48 at para. [22](https://www.canlii.org/en/ca/scc/doc/2005/2005scc47/2005scc47.html#par22)). 

[^11]: See evidence of Nigel Alleyne-Orange, October 25, 2012, p.49

[^12]: Motive is not an essential element of the offence charged. The Crown, however, argues that there is evidence of motive which could lead to an inference of planning and deliberation. The defence counters that there is no motive, which would militate against any such inference.

[^13]: See evidence of Stiven Barak, August 23, 2012, pp.165-166.

[^14]: The surveillance video was 47 minutes fast. For ease of reference, I refer to the time stamp as it appears on the video.