WARNING

The court hearing this matter directs that the following notice 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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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 Information

Ontario Court of Justice

Date: 2015-10-26

Court File No.: CENTRAL EAST 14-2955

Between:

Her Majesty the Queen

— AND —

Richard Dowdell

Before: Justice C.M. Harpur

Heard on: September 8, 9, 10, 11, 15, 16, 17, 18, 22, 24 & 25, 2015

Reasons for Judgment released on: October 26, 2015

Counsel:

M.A. Alexander/S. Curry — counsel for the Crown

C. Fromstein — counsel for the accused

REASONS FOR DECISION – s. 548(1) C.C.

HARPUR J.:

Overview

[1] Mr. Dowdell is charged with the first degree murder of Yvonne Lenore Brooks on May 30, 2014. Mr. Dowdell's preliminary inquiry came on for hearing on September 8, 2015 and proceeded through ten days of evidence. Ms. Alexander and Ms. Curry for the Crown called nineteen witnesses. Ms. Fromstein for Mr. Dowdell called three witnesses.

[2] The immediate circumstances of Ms. Brooks's death are not disputed. At approximately 12:30 p.m., on May 30, 2014 Mr. Dowdell attended at the side of Ms. Brooks's home where she was out tending to plants in her garden. Mr. Dowdell told Ms. Brooks that he was thirsty and asked if she would give him a drink of water. They proceeded to the back door of Ms. Brooks's home and went inside the home to the kitchen where Ms. Brooks obtained a drinking glass and turned to give it to Mr. Dowdell. Mr. Dowdell grabbed Ms. Brooks by the throat and began to strangle her, intending to kill her. Despite several minutes of strangling having passed, Mr. Dowdell perceived that Ms. Brooks was still alive. He picked up a large rock which was in or near the kitchen, apparently kept as a decoration, and struck Ms. Brooks several times in the face and head. She died of the blunt force injuries to her head. Having killed Ms. Brooks, Mr. Dowdell went to the telephone in Ms. Brooks's home, dialled 911 and reported to the 911 operator that he had "just murdered somebody".

[3] The test for committal is set out in U.S.A. v. Shephard, [1977] 2 S.C.R. 1067: "any evidence on which a reasonable jury properly instructed could return a verdict of guilty". It is common ground in this case that the test is met as far as s. 229 C.C. is concerned, that is, the evidence called by the Crown at the preliminary has provided some evidence of an intention by Mr. Dowdell to cause Ms. Brooks's death. The contested issue is whether the Crown has introduced some evidence on which a reasonable jury, properly instructed, could return a guilty verdict with respect to the Crown's theory that Mr. Dowdell's killing of Ms. Brooks was planned and deliberate and, thus, a first degree murder. Ms. Fromstein would concede committal of her client for second degree murder.

The Crown's Evidence

a. William Baxter

[4] The evidence said by the Crown to support planning and deliberation is circumstantial. Its centrepiece is the testimony of Mr. William Baxter. Mr. Baxter was, like Mr. Dowdell and Ms. Brooks, a resident of Sandy Cove Acres, a retirement community in Innisfil, Ontario. He lived with his wife Hazel three houses to the east Mr. Dowdell's house and a short distance southeast of Ms. Brooks's house. Mr. Baxter had known Mr. Dowdell for three or four years prior to May, 2014. Mr. Dowdell assumed as lawn-cutting customers several homeowners whose lawns Mr. Baxter had previously cut, including Ms. Brooks. Apart from their limited contact in connection with Mr. Dowdell's assumption of Mr. Baxter's customers, Mr. Baxter saw Mr. Dowdell occasionally at a bible study group which convened weekly at a building within Sandy Cove Acres and, prior to May 30, 2014, Mr. Baxter had had Mr. Dowdell into his home for coffee and a chat approximately six times. Mr. Baxter described Mr. Dowdell as normally shy.

[5] On May 30, 2014, at approximately 10:00 a.m., Mr. Baxter was in the bathroom of his home. His wife had gone to a hairdresser approximately an hour earlier. The doorbell rang. Mr. Baxter, indisposed, yelled to the person ringing the doorbell to "wait a minute". The doorbell rang again and Mr. Baxter yelled again that he was coming. He emerged from the bathroom and saw Mr. Dowdell, who had proceeded through the front door and into the living room of his home. Mr. Dowdell had never previously entered Mr. Baxter's home without being met at the door and being invited in.

[6] Mr. Baxter described Mr. Dowdell's demeanour as "agitated", entirely unlike his usual demeanour. Mr. Dowdell proceeded to say to Mr. Baxter words to the effect, "God told me I have to kill a woman in the park". Mr. Dowdell said such a phrase two or three times. Mr. Dowdell was not shouting but was speaking with more emphasis and power than was his wont. Uncharacteristically, it was he who began the conversation with Mr. Baxter that morning.

[7] In his examination in chief Mr. Baxter confirmed the accuracy of his statement to the police on the afternoon of May 30, 2014 that Mr. Dowdell also said to him that the woman in question was "one of his customers" and that the woman he had to kill was "an evil lady in the community".

[8] In cross-examination, Mr. Baxter indicated that Mr. Dowdell seemed to regard God's instruction to kill a woman in the park as a command. He told Mr. Baxter that "God said she's evil and that he [Mr. Dowdell] had to kill her".

[9] Mr. Baxter asked Mr. Dowdell why he felt he had to kill to which Mr. Dowdell responded that "I don't know. I just have to". Mr. Dowdell appeared not to be comfortable with the command, saying words to the effect that he didn't want to kill anyone or that he didn't want to die. Mr. Dowdell "seemed to be struggling with the idea".

[10] Mr. Baxter formed the impression from Mr. Dowdell's statements that it was a particular woman whom he had in mind. When Mr. Baxter made inquiries about the identity of the woman, Mr. Dowdell declined to tell him who she was or to provide a description of her.

[11] Mr. Baxter sat and spoke with Mr. Dowdell for approximately one hour about the prospect which Mr. Dowdell had raised. Mr. Dowdell became calmer in the course of their conversation and eventually seemed his normal self. Mr. Baxter's exact words were, "eventually he says 'I'm not going to do that….if I ever decide I'm going to do this again I'll talk to you first'".

[12] The conversation ended with Mr. Baxter and Mr. Dowdell hugging at Mr. Baxter's door and Mr. Baxter saying to Mr. Dowdell that he could come and see Mr. Baxter anytime.

b. Sherry Xue

[13] Ms. Xue operates a variety store in Sandy Cove Acres. Mr. Dowdell was a regular customer. Both by way of Exhibit 5 at the preliminary, a video showing Mr. Dowdell's attendance at the variety store and dealings with Ms. Xue on the morning of May 30, 2014, and Ms. Xue's testimony, the Crown led evidence that Mr. Dowdell purchased from Ms. Xue that morning cigarettes and a lottery ticket and gave her a five dollar tip. Ms. Xue was unable to recall when Mr. Dowdell had previously purchased a lottery ticket from her. He had not previously tipped her. Although Mr. Dowdell was usually polite and friendly with her, his demeanour was atypical this day in that he was very happy and talkative.

c. Detective Constables Jeff Varey and Leah Thomas

[14] Detective Constable Varey interviewed Mr. Dowdell on May 30, 2014 at the South Simcoe Police Service north division. Detective Constable Thomas interviewed Mr. Dowdell on July 3, 2014 at Central North Correctional Centre. The admissibility of the statements given by Mr. Dowdell to these officers was not challenged by Mr. Dowdell for purposes of the preliminary inquiry. To Detective Constable Varey, Mr. Dowdell said that he had purchased the lottery ticket from Ms. Xue for his wife. To Detective Constable Thomas, Mr. Dowdell said, about his purchase of lottery tickets, "I never buy…I haven't bought a lottery ticket in years".

d. Mary Clarke

[15] Ms. Clarke is also a resident of Sandy Cove Acres. She is seventy-nine years old. She lives alone. Mr. Dowdell had been her lawn-cutter in 2013 and the spring of 2014. Ms. Clarke had had Mr. Dowdell into her home for coffee four or five times prior to May 29, 2014. At 9:00 p.m. – 9:30 p.m. on that date Mr. Dowdell attended at Ms. Clarke's home, slightly to the north and east of Mr. Dowdell's. Ms. Clarke was icing a sore leg and watching television. Her porch light was off although an interior light was on. She went to the door and spoke to Mr. Dowdell. He asked whether he could come in. Because of the lateness of the hour, Ms. Clarke said no. Mr. Dowdell said words to the effect "okay, have a good night". He said nothing as to why he wanted to enter her home.

[16] In cross-examination Ms. Clarke indicated that, in the last couple of weeks prior to May 29, 2014, Mr. Dowdell "had been rambling on about God", something he had not previously done. Ms. Clarke also said that, at 9:00 a.m. or 9:30 a.m. on May 30, 2014, she saw Mr. Dowdell as she drove east on Centre Road in Sandy Cove Acres and Mr. Dowdell was walking east. She said she asked Mr. Dowdell whether he would be cutting her grass later that day and he said that he would be.

e. Una Charney

[17] Una Charney, seventy-nine, was a resident of Sandy Cove Acres until July 3, 2015. As of May 2014, Mr. Dowdell was Ms. Charney's lawn-cutter. Ms. Charney's home in Sandy Cove Acres was immediately adjacent to Mr. Dowdell's home to the east.

[18] On May 29, 2014 Ms. Charney heard Mr. Dowdell and his wife arguing loudly outside their home. Such arguments were not an infrequent occurrence. On this occasion Mr. Dowdell and his wife were quite loud. She heard Mrs. Dowdell say words which included the phrase "over my dead body" and she heard Mr. Dowdell respond with, among others, the words "not your dead body".

[19] On the morning of May 30, 2014 at approximately 8:30 a.m. Mr. Dowdell came to Ms. Charney's door. Mr. Dowdell asked to talk with Ms. Charney. Ms. Charney agreed to do so later in the day when she was back from taking her pet to a veterinarian. Ms. Charney said that Mr. Dowdell appeared "dazed" with "glazed eyes" when she saw him that morning.

f. Sergeant Brent Hines

[20] On Saturday May 31, 2014 Sergeant Hines took Mr. Dowdell to the South Simcoe Police Service South Division for a video bail hearing. At the bail hearing the charge of first degree murder was read to Mr. Dowdell. After the hearing Sergeant Hines began to escort Mr. Dowdell from the hearing room to a cell. Mr. Dowdell dropped to his knees. He then got back to his feet and continued to the cell. In the cell, Mr. Dowdell again fell to his hands and knees and said words to the effect "I can't believe the charge was first degree, I thought it would be manslaughter". Again, for purposes of the preliminary inquiry, Mr. Dowdell did not contest the admissibility of his statement to the officer.

THE CROWN'S SUBMISSION

[21] Ms. Alexander and Ms. Curry submit that the referenced pieces of evidence, regarded collectively, could lead a reasonably instructed jury to infer that Mr. Dowdell's killing of Ms. Brooks was both planned and deliberate as those terms were explained in the locus classicus R. v. Widdifield (1961), 6 Crim. L.Q. 152 (OHCJ), 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 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.

[22] Particular reliance is placed by the Crown on Mr. Dowdell's discussion with Mr. Baxter from approximately 10:00 a.m. until 11:00 a.m. on May 30, 2014. This discussion is noted to precede the killing of Ms. Brooks by approximately two hours and to contain Mr. Dowdell's averments that he felt compelled by God's command to kill a woman in Sandy Cove Acres who was his customer and that he wanted not to. His words, the Crown says, evinced a plan (the very simple plan to kill a female customer in Sandy Cove Acres), a thinking-out of the plan to the extent required, a weighing of the plan to kill and a cautiousness about its implementation.

[23] In addition to Mr. Dowdell's remarks to Mr. Baxter, the Crown relies on:

(i) the evidence concerning the lottery ticket purchased (extraordinarily) by Mr. Dowdell for his wife and his unprecedented generosity to Ms. Xue. These steps, the Crown says, are indicative of Mr. Dowdell's perception that he would be committing a murder later that day and would be taken from society for a significant period;

(ii) the evidence of Ms. Clarke and Ms. Charney that Mr. Dowdell wanted to come into their homes and speak with them on, respectively, the night of May 29, 2014 and the early morning of May 30, 2014. This is submitted to be consistent with the plan to kill a female customer announced by Mr. Dowdell to Mr. Baxter later in the morning of May 30 and to provide proof of a scheme in advance of the time and even the day of the killing;

(iii) the evidence of Ms. Charney that, the night before the killing, Mr. Dowdell was speaking to his wife of the prospect of an event occurring in future involving the death of someone other than his wife. Again, this is said by the Crown to be evidence of advance planning; and

(iv) the evidence of Sergeant Hines that Mr. Dowdell was shocked to learn he was charged with first degree murder and had anticipated a lesser charge. The Crown submits that this utterance by Mr. Dowdell is probative of a pre-killing assessment by him of the consequences of the murder of Ms. Brooks.

[24] As to the seeming irrationality of Mr. Dowdell's simple plan, the Crown points to R. v. Kirkby, [1985] O.J. No. 166 (O.C.A.) in which Martin, J.A. said the following:

I find no suggestion in those authorities that, in the case of a person who is sane within s. 16 of the Code, the word "deliberate", in addition to requiring that the killing be considered rather than impulsive imports, as counsel for the appellant contended, a qualitative assessment of the reasonableness of the offender's mental processes in making a decision to kill the victim. I do not think that Parliament by using the word "deliberate" imported a requirement that the offender's previous determination to kill the victim must be the result of reasonable normal thinking or must be rationally motivated, provided the Crown has established that the killing was planned, and that the act of killing was considered and not the result of sudden impulse.

[25] As to the seemingly improvisational manner in which Mr. Dowdell killed Ms. Brooks – a strangulation and then multiple blows with a rock – the Crown points to the decision of R. v. McColeman, [1991] B.C.J. No. 3590 (BCCA) and the following holding of that court:

Without doubt, the jury must be satisfied that an accused intends to cause death at the moment of stabbing. But if an accused has planned and decided deliberately to cause death in the sense described in the authorities, it will be no answer if, because of contemporaneous or subsequent drinking, he executes the plan in a frenzied fashion.

In other words, in a case like this, it is not necessary to focus only on the moment death was caused. Planning must, and a deliberate decision to cause death sufficient to constitute first degree murder may, occur before the moment of death is caused.

[26] As to Mr. Dowdell's vagueness in his description of his victim to Mr. Baxter and whether that vagueness prevents Mr. Dowdell's thinking from constituting a plan, the Crown cites R. v. Dipchand, [1991] O.J. No. 1775 (O.C.A.) and R. v. Brickman, [2009] O.J. No. 4612 (S.C.J.). Even if, the Crown says, Mr. Dowdell's words to Mr. Baxter are evidence of nothing more than a resolution to kill a woman in the park who was one of his customers, they would suffice for purposes of planning and deliberation. The Crown notes the words of C.D.A. McKinnon, J. in Brickman as follows:

Deliberation relating to a class of persons is sufficient to ground first degree murder. Any other conclusion would "be logically ludicrous and absurd in its consequences. Parliament could hardly have intended to punish premeditated murder less severely where an accused kills perfect stranger than it would otherwise punish an accused for the same premeditation if he had managed to kill his intended victim"; R. v. Droste, [1984] 1 S.C.R. 208; R. v. Dipchand, [1991] O.J. No. 1775 (O.C.A.).

The Evidence Relied on by the Defence and the Defence Submissions

[27] Ms. Fromstein concedes that the Crown's evidence, specifically Mr. Baxter's, supports the presence in Mr. Dowdell's mind of the idea of killing a female customer in advance of the killing of Ms. Brooks. What it does not do, the defence submits, is provide evidence of a plan by Mr. Dowdell, as this concept has been elucidated in Widdifield, supra. Ms. Fromstein says that there is no material basis in the record to infer a connection between Mr. Dowdell's remarks to Mr. Baxter about killing and the death of Ms. Brooks. Rather, it is argued, the record discloses a plethora of reasons to conclude that Mr. Dowdell's attendance at Ms. Brooks's home immediately before he killed her was unplanned. Ms. Fromstein points to the following:

(i) Ms. Clarke testified that she spoke to Mr. Dowdell early in the morning on May 30, 2014 and he confirmed to her that he would be attending at her property to cut her lawn later in the day. The defence submits that the proper inference is that Mr. Dowdell foresaw his day unfolding in the ordinary course;

(ii) Barb Wedsworth, another of Mr. Dowdell's lawn-cutting customers, testified that she saw Mr. Dowdell approach Ms. Brooks at the side of her home on May 30, 2014 at approximately 11:30 a.m. She said that she attended at her own door anticipating that Mr. Dowdell would be coming to her home also to collect his monthly lawn-cutting payment. Like several other witnesses who were Mr. Dowdell's lawn-cutting customers, she said that it was customary for Mr. Dowdell to attend at her house to receive this payment or simply check on her lawn. Ms. Wedsworth also said that she had a clear view of Mr. Dowdell as he approached Ms. Brooks at the side of her house; he was in plain view. Thus, the defence submits that Mr. Dowdell's attendance at Ms. Brooks's home on May 30, 2014 should not be regarded as anything but typical and was unconcealed, negating an inference of harmful intention; and

(iii) several witnesses testified that Mr. Dowdell's demeanour in the morning of May 30, 2014 was quite out of character. Ms. Charney said that Mr. Dowdell "looked out of it" with eyes "far away" and "glazed". Mr. Baxter testified, as indicated, to Mr. Dowdell's "agitation" and irrational thought when they met and spoke at Mr. Baxter's home. Evelyn Borthwick testified to seeing Mr. Dowdell in the morning of May 30, 2014 as she walked her dogs. She said that Mr. Dowdell was talking to himself and that she heard the words "God" and "I love my wife". She said that her partner, Richard Rowski, spoke to Mr. Dowdell who then crossed the roadway looking very angry and said "are you making fun of me". Ms. Borthwick said that Mr. Dowdell had never previously acted in that manner. Mr. Rowski also testified about this encounter. He placed it one or two days prior to May 30, 2014. Mr. Rowski said he attempted to banter with Mr. Dowdell about an empty bag which Mr. Dowdell was carrying and that, when Mr. Dowdell said that the bag had contained wood chips but was now empty, Mr. Rowski made mention of his habit of "taking his empties to the beer store and then giving the money to the church". Mr. Rowski said that when he said the word "church", Mr. Dowdell's face took on a peculiar expression and he said something about God. Mr. Rowski described Mr. Dowdell as "glazed", "staring", "withdrawn" and "in another world". He said that Mr. Dowdell's transformation to this condition at the time of this meeting was immediate and dramatic.

[28] The defence submits that Mr. Dowdell's apparently disturbed state of mind in the days and hours immediately preceding the killing are evidence that he was incapable of a careful thinking-out or a cautious weighing, pre-requisites of planning and deliberation. To the same affect, Ms. Fromstein places reliance on Mr. Dowdell's statements to Detective Constable Varey that he had consumed a small amount of hashish (approximately six "tokes") at around 10:00 a.m. on May 30, 2014.

[29] Ms. Fromstein has drawn my attention to the decision R. v. Talbot, [1985] O.J. No. 489 (S.C.J.). In Talbot, Barr, J. quashed a committal for trial for first degree murder based on planning and deliberation. Mr. Talbot had given a statement to police. He was asked "would you care to tell us when you started to think about killing your wife" and Mr. Talbot responded that "it wasn't until last night that I started thinking about it". The previous night Mr. Talbot's wife had advised him that she would be leaving him. When his wife confirmed that this was her intention the following morning, Mr. Talbot stabbed and killed her. Barr, J. quashed the committal on the basis of the following reasoning:

Perhaps the most significant words in that statement are when the accused said that he "started thinking about it last night" but in my view that does not constitute evidence of planning. If one were to say that he was thinking about going to Europe next summer, this, to everyone's mind would be a step preceding any planning for the trip.

Crown counsel argues that a jury could properly conclude that the accused had formed a plan on the evening before the killing that he would try and talk to her in the morning to persuade her to stay and if unsuccessful he would kill her. In my view, it would not be open to the jury to accept this theory. There is simply no evidence that the accused went beyond thinking about killing her. It is perhaps significant that the accused's reply when she said she thought he might become violent was that is she felt that way she should leave at that moment.

To adopt the theory of the Crown that a plan was made the preceding evening would require the jury to leaven the evidence with conjecture. In my view, there is simply no evidence of planning. The evidence seems to indicate otherwise. I must recognize that the accused may indeed have planned killing her at some time, either the night before or on the morning of her death. All I can say is that there is simply no evidence that he did so. I have no jurisdiction to interfere with the committal order unless I should conclude that the judge presiding at the preliminary inquiry exceeded his jurisdiction by committing the accused on the charge of first degree murder in the absence of any evidence on an essential ingredient of the offence.

[30] The defence relies as well on R. v. Day, [2001] O.J. 3997 (O.C.J.). In Day, Fairgrieve J. declined to commit the accused for first degree murder on the basis of planning and deliberation. While acknowledging, on the issue of identification in that case, that "the assessment of the quality of the allegedly unsatisfactory identification evidence goes to weight alone and plays no role in the application of the Shephard test for committal", the court took a different view with respect to the issue of planning and deliberation, as follows:

In my view, while the evidence called at this hearing does not preclude the possibility that the murder was planned and deliberate, the Crown's theory remains essentially speculative and based on suspicion only. No reasonable jury, in my opinion, could be satisfied beyond a reasonable doubt, based on the evidence, that the killing was conceived and carefully thought out before it was carried out, and that it was considered rather than impulsive, to use the language employed by Cory J. in Nygaard and Schimmens, supra at p. 432…

With respect to the evidence on which the Crown relies to establish planning and deliberation, I am obliged to take the Crown's case at its highest and assume that the trier would be entitled to accept those parts of the testimony of various witnesses that would support the Crown's theory. It is still necessary, however, to make a determination of whether the elements of planning and deliberation might reasonably be inferred from that circumstantial evidence.

In this case, there was no evidence of any relationship of a kind between Mr. Day and Lise Lemasurier that could have generated the degree of animus or hostility towards the deceased that could lead to a "planned execution", as alleged by the Crown. There was no evidence that the accused even knew Ms. Lemasurier and Ms. Gibson, who accompanied Ms. Lemasurier the night of the shooting, testified that she herself only met Mr. Day that night. While there was ample evidence that many individuals had grievances against the deceased, the only real evidence that the accused had a motive to kill him stemmed from the evidence identifying Mr. Day as the shooter, an assumption that such an act was unlikely to have been without motive, and speculation about what that motive might have been. In my view, that evidence and assumption do not support an inference that the accused had formulated a considered plan to kill the deceased.

[31] Finally, Ms. Fromstein relies on R. v. Golubic, [2001] O.J. No. 4592 (S.C.J.) in which a committal for first degree murder was quashed and a committal for second degree murder substituted. The Crown's evidence at the preliminary inquiry included evidence that Mr. Golubic, a tenant, had spoken of killing his landlord months before any killing occurred, that on the day of the killing the landlord parked his car, known to Mr. Golubic, in plain sight in front of Mr. Golubic's apartment building residence and, finally, that Mr. Golubic had stabbed a person accompanying the landlord immediately upon opening the door to the victim and the landlord at the apartment. Taliano, J. quashed the committal for the following reasons:

The missing evidence is the crucial and indispensable link between the accused's statement in the restaurant and his actions at the door. Without some evidence of knowledge on the part of the accused of the presence of the complainant on his property on the day in question or of the complainant's car at his residence, the Crown's case for first-degree murder is unsupportable.

There are other flaws in the Crown's case for first-degree murder. If the attack occurred on the sudden immediately when the door was opened, it is difficult to see how the attack could have been pursuant to a plan formulated several months earlier when there is no evidence before the Court that the accused had reason to expect the landlord's arrival, let alone knowledge as to when he was coming or that he had indeed arrived.

The evidence is quite the contrary. Lane testified that he heard the accused say to the landlord "get out of here, get out of here, I don't want you here". That reaction and those words would not support a finding of a calculated plan previously formulated that was triggered by the arrival of the landlord at his door.

ANALYSIS

[32] In this case the Crown's proof of the element of planning and deliberation is circumstantial and hinges in my view on the existence of a non-speculative connection between Mr. Dowdell's remark to Mr. Baxter that God was directing him to kill a female customer in Sandy Cove Acres and Mr. Dowdell's subsequent attendance at Ms. Brooks's home and killing of her.

[33] I find that there is some proof of this connection. The precise words of Mr. Baxter in his testimony were these: "eventually he says I'm not going to do that …if I ever decide to do this again, I'll talk to you first" [my emphasis]. The "that" and "this" to which Mr. Dowdell was referring are, according to his previous remarks to Mr. Baxter, the killing of a female customer. His words can reasonably be seen to support the proposition that he had decided upon the killing at one point, albeit that he was dissuaded by the time of the remark. This feature of the Crown's circumstantial case distinguishes it from the Talbot case cited by Ms. Fromstein. Here there is evidence from which the trier of fact could conclude that Mr. Dowdell was not merely "thinking about" murdering a woman such as Ms. Brooks by the time he spoke to Mr. Baxter.

[34] The Day and Golubic cases are also distinguishable. In Day, no proof existed of animus on the part of Mr. Day toward the victim. Here, Mr. Dowdell told Mr. Baxter of his animus, irrational as it was. In Golubic, no proof existed of anything other than an unexpected visit to Mr. Golubic by the victim and the landlord. Here, Mr. Dowdell was seen approaching Ms. Brooks, the very sort of victim he had described to Mr. Baxter some two hours earlier.

[35] Given Mr. Dowdell's conversation with Mr. Baxter, the other pieces of evidence relied on by the Crown - the unusual purchase of the lottery ticket, the large tip to Ms. Xue, the visit to Ms. Charney, the "not over your dead body" remark and the acknowledged expectation of a lesser charge following the video remand – can be seen as not inconsistent with a planned and deliberate murder of Ms. Brooks by Mr. Dowdell but nothing more than that as proof. Absent the conversation with Mr. Baxter, I agree with Ms. Fromstein, for the reasons she has advanced, that these pieces of evidence would not, individually, or collectively, suffice to give rise to a reasonable inference of planning and deliberation. They were such commonplace or ambiguous events that they lacked probative implications in this regard.

[36] I am not aware of any pattern in the matter of the public's purchases of lottery tickets which would make Mr. Dowdell's isolated purchase extraordinary. Similarly, Mr. Dowdell appears to have visited his lawn-cutting customers' houses routinely during the daytime and he visited Ms. Charney in her home regularly. The "not your dead body" remark lacks any context from which one might assess its import. And there is no basis to attribute a pre-murder state of mind to Mr. Dowdell on the basis of his remark about a lesser charge and his shock following his bail hearing, particularly when these things happened following Mr. Dowdell's discussions with counsel.

[37] The same cannot be said of Ms. Clarke's evidence concerning Mr. Dowdell's May 29 nighttime attendance at her home. This conduct does not fall into the quotidian category. Ms. Clarke said she refused Mr. Dowdell's visit because of the late hour. I infer that all previous visits of Mr. Dowdell to Ms. Clarke for coffee had taken place during the daytime. Certainly, given the hour, Mr. Dowdell was not there to cut Ms. Clarke's lawn. Thus there do seem to be aspects to the attendance on May 29 to distinguish it from the random or routine. Mr. Dowdell did not explain to Ms. Clarke why he wished to visit. Ms. Clarke was, like Ms. Brooks, an elderly woman who lived alone in Sandy Cove Acres and was a customer of Mr. Dowdell. She falls into the category of persons which Mr. Dowdell described to Mr. Baxter as containing his victim. I accept that the trier of fact could reasonably infer from this attendance on Ms. Clarke, in conjunction with Mr. Baxter's evidence, that Mr. Dowdell was attempting on May 29 to execute his plan to kill a person from the group he had described. I accept from this that Mr. Dowdell can be seen as holding the idea of such a killing in his mind for some material time prior to his killing of Ms. Brooks. This is probative of planning.

[38] I understand Ms. Fromstein's position to be that the co-existence on this record of a reasonable inference that the killing was impulsive precludes a committal for first degree murder. If this is indeed part of the defence submission, I cannot agree. Such a submission is based on the idea that the reasonable inference to be drawn from the circumstantial evidence in a preliminary inquiry record must be the accused's guilt (here, planning and deliberation) and none other. With respect for the contrary view expressed by Molloy J. in R. v. Collins, [2003] O.J. No. 820 (S.C.J.) and by L.T. Feldman J. in R. v. Makhla, [2015] O.J. No. 1732 (O.C.J.), I do not regard this to be the law. Rather, I regard the role of the preliminary hearing judge to be as set out in the following description of C. Hill J. in R. v. Foster, [2008] O.J. No. 827 (S.C.J.):

171. A justice acting under Part XVIII of the Criminal Code pursuant to s. 548(1), "[w]here all the evidence has been taken" at the preliminary inquiry, "shall":

…if in his [her] opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction order the accused to stand trial…

In forming an "opinion" as to the evidence's sufficiency to justify committal, the justice exercises a discretionary, but constrained, assessment of the evidence. The whole of the admissible evidence is to be considered.

If there is sufficient evidence, upon which a reasonable and properly instructed jury could find guilt, the preliminary inquiry judge must commit to trial R. v. Savant, at para. 16; R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C.(3d) 21 (S.C.C.) at 31. This committal test is the same whether the evidence is direct or circumstantial: Arcuri, at 31, 36; R. v. Monteleone (1987), 35 C.C.C. (3d) 193 (S.C.C.) at 198.

The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offence charged – even if only a scintilla of evidence: (R. v. Martin, [2001] O.J. No. 4158 (C.A.) at para. 3; R. v. Olubowale, [2001] O.J. No. 961 (C.A.) at paras 8, 10) provided "it registers in the scales as any evidence at all with the Sheppard test" [, [2002] 1 S.C.R. 869 (R. v. McIlwain (1988), 67 C.R. (3d) 393 (Ont. H.C.J.) at 309 (McIlwain approved, R. v. Montour, [2002] O.J. No. 141 (C.A.) at para. 4; and in R. v. Campbell at 165)). "To be logically relevant, an item of evidence does not have to establish on any standard, the truth or falsity of a fact in issue" – it need only "tend to increase or diminish the truth or falsity of a fact in issue" – "there is no minimum probative value required for evidence to be relevant": R. v. Arp (1999), 129 C.C.C. (3d) 321 (S.C.C.) at 338.

As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence: R. v. Deschamplain, at 9; R. v. Savant, at para. 18; R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at 172. In other words, the preliminary inquiry is not "a forum for ligating the merits of the case against the accused": R. v. Russell, at 11. Where more than one inference can be drawn from the evidence, "only the inferences that favour the Crown are to be considered": R. v. Savant, at para. 18. Because of the limited focus of a preliminary inquiry, the provincial court must commit for trial even if the defence proffers exculpatory evidence: R. v. Savant, at para. 16.

The prohibition against weighing evidence in assessing the committal question is narrowly modified where the prosecution adduces circumstantial evidence said to point towards guilt. The preliminary inquiry judge, in determining whether the elements of the offence may be reasonably inferred from circumstantial evidence, is permitted to engage in a "limited weighing" of such evidence to the extent of assessing "the reasonableness of the inferences to be drawn from the circumstantial evidence": R. v. Arcuri, at 35.

In circumstantial evidence cases, there may exist not one, but a range or field of reasonable inference which may be drawn. The ultimate determination as to whether and available reasonable inference ought to be drawn is for the trier of fact – a judge is not to ask whether facts ought to be inferred and is not to make "determinate factual inferences": R. v. Cinous, at 157, 171, 173; R. v. Arp, at 353. In other words, a preliminary inquiry justice acts in excess of jurisdiction where he or she chooses from amongst competing or alternative reasonable inferences: R. v. Figueroa et al., 2008 ONCA 106, [2008] O.J. No. 517 (C.A.) at para. 34; R. v. D.M., [2008] O.J. No. 326 (C.A.) at para. 5. A preliminary hearing court is not to apply the rule in Hodge's Case to determine whether a reasonable inference is consistent with guilt and inconsistent with a any other rational explanation: R. v. Charemski (1998), 123 C.C.C. (3d) 225 (S.C.C.) at 230; R. v. Monteleone, at 198; R. v. Mezzo (1986), 27 C.C.C. (3d) 97 (S.C.C.) at 107.

[39] In R. v. Charemski, [1998] S.C.J. No. 23 the majority of the Supreme Court of Canada found as follows:

There was, at one time, some confusion about the applicability of this [the rule in Hodge's Case] test where the Crown's case with respect any or all of the elements of the crime rested entirely on circumstantial evidence. In R. v. Comba, [1938] S.C.R. 396, at p. 397, it was suggested that where the Crown's case rests on circumstantial evidence, the trial judge can himself apply the rule in Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136, (i.e., that to convict on circumstantial evidence, the evidence must not permit any other rational conclusion but that the accused is guilty) and direct a verdict. Any confusion on this point was cleared up by this Court's unanimous judgment (McIntyre J. writing for Dickson C.J. and Estey, Lamer (as he then was), Wilson Le Dain, and La Forrest JJ.) in Monteleone, supra, at p. 161:

Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly instructed jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury. [Emphasis added]

Where the evidence is purely circumstantial, this Court made it quite clear, at p. 161, that the issue of whether the standard set in Hodge's Case has been met is a matter for the jury, and not the judge: "The question of whether circumstantial evidence meets the requirement of the so-called rule in Hodge's Case….is for the jury to determine. This was settled in Mezzo [Mezzo v. The Queen, [1986] 1 S.C.R. 802]" (emphasis added). In other words, whether or not there is a rational explanation for that evidence other than the guilt of the accused, is a question for the jury. To my mind, this view is dispositive of this case and the Court need go no further than to rely on this authority.

[40] McLachlin J., as she then was, dissented on this point in Charemski. As Chief Justice she wrote the decision of the unanimous Supreme Court in R. v. Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52. However, the court in Arcuri did not reverse its decision concerning the non-applicability of the rule in Hodge's Case as expressed in Charemski. Rather, at paras. 23 - 25 of the report, Chief Justice McLachlin said the following:

Notwithstanding certain confusing language in Mezzo, supra, and Monteleone, supra, nothing in this Court's jurisprudence calls into question the continuing validity of the common law rule: see M. Bloos and M. Plaxton, "An Almost Eulogy for the Preliminary Inquiry: 'We Hardly Knew Ye'" (2000), 43 Crim. L.Q. 516, at p. 526. In Mezzo, the issue was whether the Crown had proffered sufficient evidence as to identity. McIntyre J., writing for the majority, stated that a trial judge can direct an acquittal only if there is "no evidence" as to an essential element of the offence: Mezzo, at pp. 840-43. He also stated that a judge has no authority to "weigh and consider the quality of the evidence and to remove it from the jury's consideration": Mezzo, at p. 842. Those statements, taken alone, might be understood to suggest that a preliminary inquiry judge must commit the accused to trial even if the Crown's evidence would not reasonably support an inference of guilt. However, as the dissent in Charmenski, supra, discusses (at para. 27), the remainder of McIntyre J.'s reasons make clear that by "no evidence" McIntyre J. meant "no evidence capable of supporting a conviction", and by "weighing" McIntyre J. was referring to the ultimate determination of guilt (a matter for the jury), as distinguished from the determination of whether the evidence can reasonably support an inference of guilt (a matter for the preliminary inquiry judge). His concern was to reject the argument that the judge must determine whether guilt is the only reasonable inference. His reasons cannot be read to call into question the traditional rule, namely, that the judge must determine whether the evidence can reasonably support an inference of guilt. [my emphasis]

[41] This reference in Arcuri to the rejection in Charemski of an application by the preliminary judge of the rule in Hodge's case to circumstantial proof is made without disapproval.

[42] There is more than one reasonable inference in this case in the matter of Mr. Dowdell's state of mind in advance of his killing of Ms. Brooks. In one, he planned and deliberated her murder, or, at least, the murder of a person such as her. In another, he wandered in a confused state of mind in Sandy Cove Acres without any evil intent or even forethought about what he might do to someone he met. It is the function of the trier of fact to determine the inference to be drawn.

[43] Mr. Dowdell is committed for trial on the charge of first degree murder.

Released: October 26, 2015

Justice C.M. Harpur, O.C.J.