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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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: 2018-04-12

Court File No.: Toronto College Park 17-75001860

Between:

Her Majesty the Queen

— AND —

Glenn Blair Gaetan

Before: Justice J.W. Bovard

Heard on: March 5, 6, 7, 8, 9, 12, 13, 14, 27, 2018

Reasons for Judgment released on: April 12, 2018

Counsel:

Ms. E. Middelkamp and Ms. L. MacNaughton — counsel for the Crown

Mr. M. Webster — counsel for the accused

Reasons for Judgment

Bovard J.:

Introduction

[1] These are the court's reasons for its disposition of the issue of committal to stand trial after a preliminary hearing on the charge that the accused, Glenn B. Gaetan, committed first-degree murder on the person of Martin Hauck, on April 15, 2017.

[2] Mr. Gaetan and Mr. Hauck knew each other. The defence admits that Mr. Gaetan is a drug dealer and that he had customers in the apartment building where Mr. Hauck lived. Further, it is possible that Mr. Hauck was one of his customers.

[3] A video tape from a surveillance camera shows Mr. Gaetan and Mr. Hauck entering Mr. Hauck's apartment shortly before Mr. Hauck was shot in the head with a handgun.

[4] The Crown argues that Mr. Gaetan planned to kill Mr. Hauck. He entered the apartment with the intention of killing him and he deliberately shot him in the head while in the apartment. Therefore, he should be committed to stand trial on first degree murder.

[5] In the alternative, the Crown submits that if the court finds that there is not sufficient evidence to commit Mr. Gaetan on first degree murder, there is sufficient evidence to commit him on second degree murder.

[6] The defence disagrees that there is sufficient evidence to commit Mr. Gaetan to stand trial on first degree murder. However, the defence concedes that there is sufficient evidence for committal on second degree murder.

The Issues

[7] The only issue is whether there is sufficient evidence to pass the Sheppard test that Mr. Gaetan committed first or second degree murder. The determination of this issue turns on a consideration of all of the evidence and on the application of the law to the evidence.

The Evidence

[8] Twenty-six witnesses testified at the preliminary hearing. I will focus my review of the evidence mainly on the evidence that bears on the issues of whether Mr. Gaetan should be committed for first or second degree murder.

Forensic Pathology Evidence

[9] Dr. Cunningham gave expert testimony in the area of forensic pathology. He performed the autopsy on Mr. Hauck and prepared the Report of Postmortem Examination, which is exhibit 16. He testified that Mr. Hauck was killed by a bullet to the right side of his face, just in front of his right ear. The bullet cut across an artery and then passed through the spine.

[10] Dr. Cunningham stated that the gunshot was "not likely immediately lethal", which would "allow time for significant blood loss from the disrupted right internal carotid artery". Further, given the injury to the spinal cord "there may have been impairment of mobility from paralysis following the gunshot wound".

[11] Dr. Cunningham said that there was no evidence of an altercation. He also found that there was no black soot on Mr. Hauck's hands.

[12] There was a "faint, black residue" just above the entry wound. In addition, he found "black soot deposition, thermal injury and post-mortem drying overtop of the marginal abrasion …"

[13] With regard to how close the gun was to Mr. Hauck's head when it fired the bullet, Dr. Cunningham testified that there was stippling "about the entry wound covering a diameter of approximately 5.5 cm".

[14] Stippling is red pin-point marks around a wound that are caused by unburnt gun powder that is projected out of the barrel of the gun and onto the skin. The presence of stippling is an indication that the end of the barrel was between "Near Contact to Intermediate" range from the wound.

[15] In answer to defence counsel's questions he said that it was possible that Mr. Hauck shot himself with his right hand. He could not see how he could have done it with his left hand, however.

[16] In cases of self-inflicted wounds the muzzle is close to the wound. It is uncommon that it would be in the close to intermediate range from the wound as in this case.

[17] In addition, Mr. Hauck's wound was not in one of the typical areas of the body that people choose when shooting themselves. This calls for a consideration of an alternative explanation to a self-inflicted wound scenario. Dr. Cunningham said that he would not expect Mr. Hauck's wound to be an intentional self-inflicted wound, but it could have been an accident. Based on the autopsy, he could not rule out that it was self-inflicted.

[18] Dr. Cunningham said that the limitations of his opinions are that (1) he could not ascertain the precise range between the firearm and the surface of Mr. Hauck's skin, (2) he could not ascertain the precise position of Mr. Hauck when the firearm was discharged, and (3) he could not ascertain with precision the degree of mobility that Mr. Hauck would have had following the injury to his spinal cord.

Surveillance Video Evidence

[19] The Crown introduced snapshots taken by Detective Constable Emptage from a video surveillance tape of the interior of Mr. Hauck's apartment building. The videotape is an exhibit. The defence admits that Mr. Gaetan is in the videotape and in the pictures. The videotape shows Mr. Hauck and Mr. Gaetan going into Mr. Hauck's apartment at around 8 p.m. As they enter the apartment Mr. Gaetan is behind Mr. Hauck pointing a handgun at his back. The videotape shows Mr. Gaetan leaving Mr. Hauck's apartment at around 10 p.m.

[20] Detective Constable Emptage testified that the tape shows Mr. Hauck and possibly Mr. Gaetan letting Ms. Fridaus (Tessa) Burtally, one of Mr. Gaetan's crack cocaine customers, into the apartment. The tape further shows Ms. Burtally leaving Mr. Hauck's apartment 12 minutes later.

[21] Detective Constable Emptage testified that the tape shows all of the persons who came and went into Mr. Hauck's apartment. He said that there were two persons in Mr. Hauck's apartment at the time of the murder. The officer said that on the tape he did not see any blood on Mr. Gaetan except for on his shoe.

Witness Testimony

[22] Ms. Tessa Burtally testified that she lives in the same building where Mr. Hauck lived. She had known him for 10 years. She said that Mr. Hauck was badly depressed. She was not sure whether he ever talked about suicide.

[23] On April 15, 2018, the day of the shooting, she went to Mr. Hauck's apartment as is shown on the video surveillance tape. She said she went there for a cigarette. She did not stay in Mr. Hauck's apartment very long before returning to her apartment. She said that there was another person named Carlos in the apartment with them. At first, she testified that she did not know him. Later, she said that she knew him because he is a friend and they both do drugs. She gets along well with Carlos because he is nice to her. However, she does not get drugs from Carlos. On the night in question she did not have any drugs. She said that Carlos could possibly be Mr. Gaetan.

[24] When she left them Mr. Hauck was fine. At first, she said that Carlos and Mr. Hauck got along fine. Later, she said that she did not know how well they got along. She never saw Carlos threaten Mr. Hauck. On the night in question neither Carlos nor Mr. Hauck was drunk or intoxicated by a drug.

[25] The defence admits that Mr. Gaetan sells drugs to the people in the apartment building.

[26] Mr. Gregory Forsythe testified that he lives on the same floor as Mr. Hauck did. On the evening in question, Mr. Hauck came to his apartment to borrow a lighter. He walked back to Mr. Hauck's apartment with him and went inside. There was no one else in the apartment. Mr. Hauck was in a good mood. He did not stay long because he was not feeling well. He did not hurt Mr. Hauck.

[27] Ms. Jennifer Hobbs lives in the apartment building where Mr. Hauck lived. She saw Mr. Hauck coming and going in the lobby of the building, but did not know him well. On a couple of occasions she asked him for a cigarette. Mr. Hauck was usually bitchy. He was a very miserable man.

[28] However, when she saw him in the lobby on the day in question he was in good spirits. She asked him for a cigarette.

[29] Mr. Andrew Hall testified that on the night in question he and a friend, Laird Marshall, were drinking at a bar at Dundas Street and Carlaw Avenue. They had a couple of drinks but they were not drunk.

[30] They left the bar at about 9 p.m. As they were walking down the street they found the receiver of a gun on the ground. They flagged down a nearby police officer and gave it to him. They continued along walking and found another piece of the firearm on a sewer grate. The same officer came over to retrieve it.

[31] Mr. Marshall testified that they left the bar at around 11 p.m. He said that he was intoxicated but he was coherent when they left. He found the receiver on the ground alongside of the curb. He picked it up and called over the nearby police officer to give it to him.

[32] They kept walking and within two minutes Mr. Marshall saw another part of the gun which included the handle. It was on a sewer grate.

[33] He called over the same police officer and gave it to him.

[34] Officer Walker confirmed that he was the officer to whom Mr. Marshall and Mr. Hall gave the parts of the gun that they found. The gun parts were the "slide" and the receiver which contains the trigger, main grip, and houses the magazine. Officer Walker said that there was a shell casing in the chamber. Officer Javed confirmed later that the shell casing was empty.

Evidence of Disposal of Evidence

[35] The defence admitted that on April 15, 2017, Mr. Gaetan went to 48 Natalie Place at around 10 p.m. or 10:15 p.m. He put the vest that he is wearing and the black bag that he is carrying in the surveillance video of the apartment building where the shooting occurred into the recycling bin on the porch of this address. Since this is conceded for the purpose of the preliminary hearing I will not summarize the evidence of the witnesses that testified in this regard.

[36] Officers Micallef and Bertin responded to a call to go to 48 Natalie Place regarding an attempted break and enter. They spoke to the home owner and seized the vest and the black bag. The vest contained Mr. Gaetan's health card. The black bag contained 40 pieces of crack cocaine, methamphetamine, two $5 bills and one .45 calibre bullet. Officer Micallef also found the front part of a cell phone in the flower bed in front of 48 Natalie Place. He found the back cover for the phone in the nearby alleyway. He described it as an LG touch screen smart phone.

[37] Ms. Tanisha Marsh testified that she has known Mr. Gaetan for eight years. She was his surety on the day of the shooting. That month, April 2017, she had given him an LG phone.

[38] Mr. Stephen Cooley testified that at 11:30 AM on April 16, 2018, the day after the shooting, he was walking his dog. As they passed a furniture store he found the magazine of a handgun on the windowsill of the store. He took it back to his apartment and showed it to his girlfriend. They decided that it would be best if he returned it to the windowsill and call the police, which is what he did.

[39] Officer Shum responded to the call. She arrived at the scene, spoke to Mr. Cooley and then called an officer from forensic identification services to come to the scene. Officer Shum did not touch the magazine. Officer Black came and took pictures of the scene and of the magazine. There were 7 bullets in the magazine. Officer Plath, from forensic identification services, arrived shortly and seized the magazine.

Forensic Firearms Evidence

[40] Ms. Jennifer Plath, gave expert testimony as a "Forensic Scientist, Firearms and Toolmarks". She provided two reports, which are exhibits 25, 26.

[41] She confirmed in testimony her conclusion given in exhibit 26, at page 2, that "within the limits of practical certainty" the bullet that was found in Mr. Hauck's body was fired from the firearm whose pieces were found on the street by Mr. Marshall and Mr. Laird.

Additional Witness Testimony

[42] Ms. Jamie Lemen worked as a supervisor for Wood Green Community Services at Mr. Hauck's building on the day in question. Consequently, she knew Mr. Hauck, Mr. Gaetan, Ms. Burtally, and Mr. Forsythe.

[43] Ms. Lemen looked at the surveillance video and identified Mr. Gaetan as leaving Mr. Hauck's apartment at 9:37 p.m. on the day in question. She described the video as showing that Mr. Gaetan walked down the hall way and into the emergency stairwell.

[44] She further identified on the video Ms. Burtally leaving Mr. Hauck's apartment at 9:07 p.m. and then walking down the hallway.

[45] Ms. Lemen said that from what she knew of Mr. Hauck he was on an Ontario disability pension. He was an agitated person and complained about the state of the world and about the gentrification of the neighbourhood. Once, the police had to be called because Mr. Hauck had an altercation with a staff member.

[46] She knew that Mr. Hauck had a brother whom he loved very much that committed suicide. But she had never heard of Mr. Hauck having any mental health issues or of having attempted suicide. He was not a depressed person. He was not well-liked, but she did not believe him to have any enemies.

[47] People were used to his ranting and raving and making fun of people. She did not know anything about Mr. Hauck's relationship with Mr. Gaetan.

[48] On Monday, April 17, 2017, a tenant told her that Mr. Hauck's door had been ajar since the weekend. Ms. Lemen remembered that Mr. Hauck had not come down stairs for programming that he usually attended.

[49] She went to check on Mr. Hauck with a co-worker, Ms. Grigor. They went to his apartment and noticed that the door was slightly open. They knocked but received no answer. They went inside and saw Mr. Hauck sitting at his kitchen table with his head slumped down on top of it. There was blood all around him. She saw a footprint in the blood. Ms. Lemen called 911.

Crime Scene Investigation

[50] Officer Henkenhaf responded to Ms. Lemen's call. When he arrived at Mr. Hauck's apartment the paramedics were there. They told him that Mr. Hauck was dead. Officer Henkenhaf made notes regarding the scene. He observed two footprints in the blood that was at Mr. Hauck's feet. In addition, he saw a footprint at the entrance of the bathroom. He called forensic services.

[51] Detective Constable Landry works in the forensic identification service of the TPS. He went to the scene. When he arrived at Mr. Hauck's apartment, Mr. Hauck was slumped over the kitchen table. Officer Landry took pictures and made a video of Mr. Hauck and of the apartment and made observations of the scene in general. His pictures and the video are exhibits.

[52] He noted that there were no signs of a struggle. He found bloody footprints that went from the apartment, down the hallway and into the emergency stairwell. He saw red stains going downwards on the stairs.

[53] Next, Officer Landry and his assistants removed the body and sent it to the morgue.

[54] Officer Landry returned to the apartment on April 18, 2017 and completed his video of the scene and took photographs. He found a bullet in the apartment. He re-sealed the apartment and went to the police station to process the work that he had just done at the apartment.

[55] On April 19, 2017, Officer Landry returned to the apartment and treated the floor with LCU, a compound that reacts with blood and allows one to see the blood that otherwise is invisible to the naked eye. He found two footprints in front of the bathroom.

[56] Officer Landry also took pictures of a firearm that was found in an alleyway. The firearm was in two pieces. A spent cartridge was found jammed in the fire arm.

Forensic Identification Evidence

[57] Officer Grondin is the lead forensic identification officer in this case. Among other things, he took pictures of a handgun and of a Federal .45 calibre shell casing that were left for him at the police station. He also took swabs of the casing and the handle and trigger guard of the gun.

[58] He tested the vest that Mr. Gaetan hid in the recycling bin. He found blood on it, but he could not tell if it was human or animal blood.

Forensic Biology Evidence

[59] Ms. Tricia Miller testified as an expert in forensic biology. She concluded that the blood on the vest that Mr. Gaetan is wearing in the surveillance video, which he later put in the recycling bin at 48 Natalie Place, cannot be excluded as being Mr. Gaetan's blood. She also found that Mr. Gaetan's DNA was on the collar and on the zipper pulls.

[60] She concluded that Mr. Hauck's DNA was not on the grip or on the slide of the firearm.

[61] Further, she found that Mr. Gaetan cannot be excluded from being one of the contributors of DNA on the grip or slide of the firearm.

Blood Stain Pattern Analysis

[62] Detective Constable Albrecht testified as an expert in blood stain pattern analysis. His "Findings/Opinions" are on page 28 of his report. In brief they are as follows:

1. There is nothing to indicate that Mr. Hauck moved his hands or legs after being shot.

2. It is possible that a person's foot created the void pattern on the floor by the table facing Mr. Hauck. This is shown in "Figure 33", page 27 of his report.

3. There were bloody footprints in various places in the apartment. The locations are depicted in the pictures in his report. They are also listed in paragraph 6 on page 28.

[63] Officer Albrecht said that if the shooter shot Mr. Hauck at point blank range back spatter would not necessarily occur because of the tremendous amount of force caused by the gases that come out of the barrel when the gun is fired.

[64] Officer Albrecht could not say who had the gun when the fatal shot was fired. Nor can he say what position Mr. Hauck was in when he was shot.

[65] In terms of the blood patterns around Mr. Hauck, the same pattern could have been produced had he shot himself, or if someone else shot him and stepped away quickly.

Surety's Evidence

[66] Ms. Tanisha Marsh said that on April 15, 2017, Mr. Gaetan called her. He was crying and told her that Mr. Hauck was dead. They had been messing around with the gun. He went to the washroom. While he was there he heard a gunshot. He came out and saw Mr. Hauck slumped over the table with a hole in his neck. The gun was on the floor. Mr. Hauck did not respond. Blood dripped on Mr. Gaetan. He took the gun because he had been touching it. Then he took off. He discarded the gun and some of his clothing. She told him to call his lawyer.

[67] The next day she picked him up. They went to High Park with some members of her family. The next day they stayed in her house. She realized that the police were looking for him so he turned himself in.

[68] Ms. Linda Cunningham-Marsh testified that she knows Mr. Gaetan because he lived with her and her family in the spring of 2017. The day after the shooting, she went to High Park with her family and Mr. Gaetan. He was not his normally funny self. He seemed tired.

[69] She identified Mr. Gaetan as the person in the video surveillance tape leaving Mr. Hauck's apartment and walking down the hall to the emergency stairwell. She had seen him wearing the same clothes before. In addition, he had a "man bag" like the one that the person was carrying in the video surveillance tape. She had seen it before at her house. She had also seen him wearing the same vest at her house.

The Positions of the Parties

[70] Both parties agree that there is sufficient evidence to pass the Sheppard test with regard to second degree murder. They differ with regard to whether there is sufficient evidence to pass the Sheppard test for committal on first degree murder.

The Crown's Position on Committal for First Degree Murder

[71] The Crown does not rely on post-offence conduct with regard to committal on first degree murder. With regard to the rest of the evidence, Ms. MacNaughton pointed out that the video surveillance tape shows that when Mr. Gaetan and Mr. Hauck went into Mr. Hauck's apartment at approximately 8:00 p.m., Mr. Gaetan had a gun to Mr. Hauck's back. This is evidence that he was exercising control over him. It is also evidence of animus and of a plan to murder Mr. Hauck.

[72] Approximately one and a half hours went by and then Mr. Hauck is seen on the surveillance video tape leaving his apartment and coming back with Mr. Forsythe about 20 seconds later.

[73] At approximately 10:01 p.m., the surveillance video tape shows Mr. Gaetan leaving the apartment. There is what appears to be a red stain on the tip of his left shoe, which was not there when he went into the apartment.

[74] Ms. MacNaughton agreed that the Crown would not be arguing for a committal on first degree murder were it not for the surveillance video tape that shows Mr. Gaetan holding a gun to Mr. Hauck's back as they enter Mr. Hauck's apartment. That is the lynchpin of her argument.

The Defence Position on Committal for First Degree Murder

[75] Mr. Webster agreed that the evidence of Mr. Gaetan having the gun at Mr. Hauck's back as they entered Mr. Hauck's apartment allows for a reasonable inference that Mr. Gaetan was using the gun to intimidate Mr. Hauck. But there is little evidence of what occurred in the apartment during the two hours that they were together before Mr. Hauck was shot. And what evidence there is does not reveal anything untoward going on between the two of them.

[76] Moreover, the gun at his back is the only evidence of animus against Mr. Hauck on the part of Mr. Gaetan, not only on the night in question, but at any time.

[77] In addition, Mr. Webster argued that the fact that Mr. Gaetan allowed Mr. Hauck to leave the apartment to go get Mr. Forsythe renders unreasonable the inference that he had Mr. Hauck under his control or that he was intimidating him, much less that he planned to kill him.

[78] Mr. Webster also maintained that had Mr. Gaetan planned Mr. Hauck's murder he would have acted in a cooler, more organized and methodical manner after he shot him. For example, he would not have run around disassembling the gun as he walked down the street and scattering the parts of it here and there willy-nilly. Furthermore, he would not have put his vest and bag in the recycling bin.

[79] With regard to the evidence that Mr. Hauck's DNA was not found on the gun, Mr. Webster argues that expert testimony is required in order to draw the inference that this is evidence that he did not touch the gun.

The Criminal Code

Murder

[80] Section 231(1) of the Criminal Code describes the classifications of Murder.

[81] Murder is first degree murder when it is planned and deliberate: S. 231(2).

The Jurisprudence

Planned and Deliberate

[82] The jurisprudence in this area indicates that:

Planning and deliberation are distinct elements. "Planned" is given 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. It need not be a complicated plan. It may be very simple. The important element is the time involved in developing the plan, not the time between its development and the doing of the act: R. v. Widdifield, (1961), 6 Crim. L.Q. 152 (Ont. H.C.J.) at 153.

[83] "Deliberate" is also given its natural meaning of considered, not impulsive, slow in deciding and cautious, implying the accused must take time to weigh the advantages and disadvantages of the intended action: Widdifield, supra.

The Test for Committal to Stand Trial After a Preliminary Hearing

[84] In deciding whether or not there is sufficient evidence to commit Mr. Gaetan to stand trial I have to apply the test set out in United States of America v. Sheppard:

… [is] there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, … required to commit an accused person for trial in any case in which there is admissible evidence, which could, if it were believed, result in a conviction.

[85] Arcuri v. The Queen, affirmed the Sheppard test. The court stated that the test is the same whether the evidence is direct or circumstantial:

The test is straight forward if the Crown presents direct evidence regarding every element of the offence. "…if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial" (Para. 22).

[86] However, the court explained that:

The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established… (Para. 23). (Emphasis Added)

[87] In cases such as these:

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt (Para. 23). (Emphasis Added)

[88] Justice Doherty pointed out in R. v Jackson that,

In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown.

[89] At the preliminary hearing guilt does not have to be the only reasonable inference from the evidence: Arcuri at para. 25; R. v. Mezzo.

[90] This implies that when assessing a circumstantial case at a preliminary hearing to determine if the accused should be committed to stand trial, the evidence does not have to yield only one reasonable inference: guilt.

[91] This means that in a case where there is more than one reasonable inference, in order to commit the accused to stand trial the judge does not have to conclude that guilt is the only reasonable inference.

[92] It is the total and cumulative effect of the circumstances disclosed in the evidence that must be considered in applying the Sheppard test. When considering circumstantial evidence:

A compartmentalized and isolated analysis of each strand or item of circumstantial evidence is not to be undertaken by the provincial court judge presiding at a preliminary hearing. Provided the total and cumulative effect of the circumstantial evidence could found an inference of guilt, an accused must be ordered to stand trial. R. v. Gollogly

[93] The mandate of the preliminary inquiry justice as expressed in s. 548(1) requires the justice to consider the whole of the evidence, including any defense evidence: Arcuri, para. 32

[94] At the preliminary hearing stage, any doubt concerning whether there is sufficient evidence to commit an accused to trial should be resolved in favour of the Crown.

[95] Regarding inferences, Justice Ducharme stated in R. v. Munoz that "The first step in inference drawing is that the primary facts, i.e., the facts that are said to provide the basis for the inference, must be established by the evidence. If the primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation" (para. 26).

[96] In paragraph 31, he stated:

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 the basis for a reasonably drawn inference. Therefore, it is not enough simply to create a hypothetical narrative that, however speculative, could possibly link the primary fact or facts to the inference or inferences sought to be drawn. As Fairgrieve J. noted in R. v. Ruiz, [2000] O.J. No. 2713 (C.J.), at para. 3, "Simply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence." The inference must be one that can be reasonably and logically drawn and, even where difficult, it cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps.

[97] In R. v. Morrissey, Doherty J.A. held that "A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation."

Analysis

First Degree Murder

Planning and Deliberation

[98] There is no direct evidence of planning and deliberation, therefore, the Crown's case relies on whether the evidence permits a reasonable inference to be drawn that these factors exist.

[99] The Crown agrees that the video surveillance of Mr. Gaetan holding a gun to the back of Mr. Hauck as they enter Mr. Hauck's apartment is the most important evidence of planning and deliberation. Ms. MacNaughton conceded that without that she would not have argued for a committal on first degree murder.

[100] The Crown also concedes that the case for committal on first degree murder is not as strong as it could be. This is a fair and reasonable concession.

[101] I must consider the evidence of Mr. Gaetan holding a gun to the back of Mr. Hauck as they enter Mr. Hauck's apartment in the context of all of the evidence.

[102] Consequently, I must consider that Mr. Gaetan allowed Mr. Hauck to leave his apartment for approximately 20 seconds to go and get Mr. Forsythe and bring him back to the apartment. This tends to indicate that Mr. Hauck had freedom of movement. This undermines the argument that Mr. Gaetan was exercising control over Mr. Hauck at that point.

[103] I must also take into account that the only evidence of animus between Mr. Gaetan and Mr. Hauck is that which can be inferred from the evidence of Mr. Gaetan holding a gun to the back of Mr. Hauck as they enter Mr. Hauck's apartment.

[104] There is no evidence of a struggle between Mr. Gaetan and Mr. Hauck.

[105] Mr. Gaetan and Mr. Hauck were in the apartment together for approximately two hours before he was shot. Ms. Burtally testified that all was fine between them while she was there and that Mr. Hauck was fine when she left. Other than Ms. Burtally's evidence of her very brief visit to get a cigarette there is no evidence of what occurred between Mr. Gaetan and Mr. Hauck during that time.

Disposition Regarding Committal on First Degree Murder

[106] After considering all of the evidence, the law, and the submissions of counsel, I find that there is not sufficient evidence to pass the Sheppard test for a committal on first degree murder.

[107] I find that it would be mere speculation to say that the evidence gives rise to a reasonable inference that Mr. Gaetan possessed the required planning and deliberation to justify a committal to stand trial for first degree murder.

[108] Therefore, Mr. Gaetan is discharged on first degree murder.

Disposition Regarding Committal on Second Degree Murder

[109] I agree with the Crown and with the defense that there is sufficient evidence to pass the Sheppard test for a committal on second degree murder. Therefore, Mr. Gaetan will be committed to stand trial on second degree murder.

Released: April 12, 2018

Signed: Justice J.W. Bovard