ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-3500
DATE: 20120213

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JASON BOUTILIER and CHRISTOPHER SANDFORD Applicants

D. King, for the Crown (Respondent)

M. Stellato, for the Applicant, Boutilier
K. Edward and R. Yanch, for the Applicant, Sandford

HEARD: February 2, 2012

glithero j.

ruling on certiorari application

1These two applicants were originally charged with offence of second degree murder. Another co-accused named in the same information, Garrett Henderson, was charged with first degree murder.

2Following an 11 day preliminary enquiry, all three men were committed to stand trial on a charge of first degree murder.

3These two applicants seek to quash their committal to stand trial for first degree murder, but in the written materials concede that it would be appropriate to commit them to stand trial on a charge of manslaughter. During oral submissions on this application, counsel for both these applicants conceded further that it would be appropriate to order each of them to stand trial on the charge of second degree murder.

The Evidence

4All parties agree that evidence was called at the preliminary enquiry in support of the following factual allegations.

5On October 16, 1999, at approximately 4:00 a.m., a freight train with about 90 cars was pulling into Brantford. As it approached a junction and as it was approaching a curve, the conductor observed a body with legs lying over the south rail of southern-most track. He pulled the emergency device. The train took about a quarter of a mile to stop. The engineer had blown the horn and kept it blowing until the engine was past the body. The conductor testified that when he first saw the body, it was not moving. He estimated that approximately 20 railway cars had passed over or by the body.

6The first officer on the scene arrived at approximately 3:59 a.m. on October 16, 1999. He spoke to the train conductor and then found the body of the deceased lying face down on the ground. He observed obvious trauma to the right lower leg and the forehead.

7A police officer arriving at approximately 4:20 a.m. observed the body of the deceased, Aaron Reid, lying face down with the head resting against the south rail of the south track. He observed obvious trauma to the right leg and foot and to the head. The shoe from the right foot was in the middle of the track – two rails of the south track.

8This officer also observed small pieces of the deceased on the front and right-side of the locomotive. Another police officer observed bloody tissue on an axle housing of the wheels of the train, and blood spatter on a wheel and on a hydraulic hose at the rear of the wheel, and blood spatter and tissue on the front of a gas tank located right behind the set of wheels.

9There was extensive trauma to the right lower leg and foot, with the right foot being partially severed. There was extensive trauma to the top of the head in the front and brain tissue was exposed.

10An officer attending on the autopsy observed the knees of the deceased pants to be clean and bore no indication that the deceased had crawled on his knees. There were other greasy dirty stains on other locations consistent with tumbling along the tracks after impact. The soles of the deceased shoes had greasy marks consistent with walking along the greasy train tracks.

11There were no obvious defensive wounds to the deceased.

12The pathologist who performed the autopsy on October 18, 1999, observed a comminuted fracture of the right frontal skull with exposed brain tissue. She was unable to say whether other bruising, abrasions or contusions had occurred before being hit by the train. She was unable to determine whether the deceased had been alive when hit by the train. Other findings included the presence of marijuana and a blood alcohol level of 164 m.g. percent.

13Daniel Berkeley, a friend of the deceased, saw him on the night of October 15, 1999, both at a house party and at a nearby nightclub. He testified that the deceased had been drinking, but was “not completely drunk.” He last saw him at a about 2:15 a.m. Mr. Berkeley and another left to go home and he observed the deceased walk across the street towards a crowd of people that were at the house party. He testified that Mr. Henderson and Mr. Sandford were at that party.

14Another witness, Stephanie Brown, testified that she was at the party and testified that she saw a few words exchanged between Henderson and a male that she believed to be the deceased, who had escorted a girl to a cab.

15Kevin Penzes testified that in 2000, he was in jail with Henderson who told him that he had been in the company of some people who were hanging around a house party. They decided to rob and punch out the deceased. Penzes testified that Henderson told him that he punched out the deceased, pushed him on the tracks, and left him there. Henderson did not name the others involved.

16Jason Fulford was a close friend of the deceased. Both lived near the train tracks and both used those tracks almost on a daily basis as an easy way to move around Brantford. He testified that on October 15, 1999, he returned to the nightclub at about 3:00 a.m., after having taken his girlfriend and the deceased’s girlfriend home. The deceased was still there. The accused, Sandford was also there. Fulford testified that the deceased and Sandford had a “discreet” conversation, and then they socialized with a couple of under-aged females. Fulford left the club and advised the deceased that he would be back in 20 minutes to pick him up. When he returned, there were people hanging around the door of the club, including Sandford. The club was closed. He could not find the deceased, so he left.

17Kimberly Ann LaSalle was dating Mr. Henderson in 1999. She learned of the deceased’s death on the morning of October 16, 1999. Her boyfriend, Mr. Henderson, had not returned home when he was supposed to, but did return at approximately 5:00 to 6:00 a.m. He appeared scared, had blood on his knuckles, and may have had blood on his shirt. His shirt was placed in a bag normally containing baby clothes. She testified that Mr. Reid did not like Henderson because he knew that Henderson had assaulted Ms. LaSalle when she was pregnant and he had told Henderson to leave LaSalle alone.

18Maryanne Yates testified that she mothered one of Mr. Henderson’s children during a relationship that extended from 2001 to 2005. Sometime in late 2001 or 2002, Henderson told her he was responsible for this death. She testified that Henderson told her that he had followed Mr. Reid home from the party, attempted to rob him, hit him on the side of the head with a rock, placed him on the tracks, and walked away.

19Daniel Saunders testified that during a conversation between him and Henderson, Henderson admitted that he had hit Mr. Reid in the face with a piece of rock or piece of coal from the tracks. He testified that Henderson added that he had seen something that had spooked him so ran away and did not think to pull Reid off the tracks that he had not planned on Mr. Reid dying. This conversation allegedly took place in 2003 or 2004.

20Dr. Tracy Rogers was qualified as an expert in Forensic Anthropology, and testified that she examined the body of the deceased following its exhumation on January 11, 2011. She observed crush fractures to the knuckles of the second and third fingers on the left hand, a transverse fracture to the left fibula, and a longitudinal fracture to the right outer ankle. Her evidence was that all but the back of the skull was in several pieces. The facial bones were fragmented. Some skull bone pieces were missing. The right-side of the skull was in multiple pieces with the damage extending into the right cheekbone, then across the forehead from right to left. The damage was opined to have required significant force and to have been inflicted by something broad. On the left side of the skull, there was damage towards the top, which was opined to have been a continuation of the force applied to the left-side of the skull. A second point of injury involved the left eye socket and temple area, which seemed to be a separate injury. She further observed a fracture running down the middle of the forehead, perpendicular to the fracture on the right-side.

21Her evidence was that a minimum of two and probably three or more impacts were necessary to cause all these injuries to the skull. The injuries to the right-side were consistent with being struck by a train. She was unable to indicate whether the deceased had been hit by a rock or kicked.

22Dr. Chitra Rao, a Forensic Pathologist, testified after her review of the original autopsy and subsequent reports. She opined that the deceased was alive at the time he was hit by the train as there was an indication of bleeding into the brain tissue. She could not say whether the deceased was conscious or not when hit by the train. She testified that she saw no evidence of defensive wounds and that she could neither confirm nor rule out whether any of the injuries had occurred prior to the train impact.

23Jennifer Barron was 15 years of age at the time, and knew the deceased and all three accused. She testified that she attended a party back in 1999 at a house across the street from the bar, The Turnaround. She had been both at the bar and at the party. She testified that she saw all three accused at the party, as well as the deceased, and testified that the deceased had interaction with all three of the accused. It appeared to her that they were arguing, but she could not hear what was being said because of loud music. It appeared to her to be mainly Henderson who was arguing with the deceased. She testified that at one point she saw Henderson shove the deceased.

24Although she did not know how long she had been at the party, or when she left, she testified that she saw the deceased travelling from the area of the party, up Market Street towards the railway tracks. She had left the party and was following a crowd of other people, who headed in the same direction as the deceased. The three accused were part of that crowd. She testified that there was still name-calling going on between the deceased and Henderson, as they walked along and hollered back and forth at each other.

25Her evidence is that all of them got to the train tracks where everything “got out of hand.” On her evidence, no one directed the deceased towards the railway tracks. The deceased was the first to reach the tracks and she testified that he was increasing the speed at which he walked before he reached the tracks. Her evidence continued that once the deceased reached the tracks, Henderson ran up to him, met him at the tracks, and punched the deceased, who was stunned and shocked as a result. She testified the deceased appeared scared, and that everyone had “their little rounds with him.” Her evidence is that Henderson both punched and kicked the deceased. She says that Boutilier kicked the deceased in the stomach area and punched the deceased in the face. Sandford punched the deceased a few times in the face and chest. No one else got physically involved. Her evidence is that the deceased was not in a position to get away because of the way everyone was setup there. He tried to defend himself, but the best he could do was to kind of shield his face. It ended with the deceased lying on the track as a result of the beating. Once he was on the tracks, she did not see him get up. Henderson kicked him in the face and punched him. No one else kicked the deceased while he was down. She later added that her sister, Sheila Barron, did punch and kick the deceased when he was on the ground, as well as when he was standing. Her evidence continued that once the deceased was down between the tracks, he was initially still moving, but stopped moving when he received the last kick from Henderson. After that he did not move at all. The witness left the scene. At another point in her evidence, she testified that Boutilier and Sandford were position “kind of like in a circle” so that deceased could not get away.

26She testified that Henderson punched the deceased in the chest and that caused him to go down.

27She testified that she did not see anyone hit the deceased with anything in their hands. After a recess, she recalled that Sandford had been holding the deceased for five minutes or so during the time that Henderson was punching him several times. When Sandford let go, the deceased was staggering around. Henderson hit him again with a punch and the deceased went down.

28After another recess, she testified that she thought Henderson had something in his hand when he hit the deceased just before he went down, and based that on the manner in which the deceased went down, rather than on the basis of actually being able to see anything.

The Committal

29Following the completion of evidence at the preliminary, the crown asked for a committal of all three men on the charge of First Degree Murder. The crown advanced two theories. The first one was that each of the accused either intended to kill Mr. Reid, or meant to cause him bodily harm that each knew was likely to cause his death, and was reckless whether death ensued or not, in accordance with ss. (i) (ii) respectively within s. 229(a). The crown position was that they ought to be committed on a charge of first degree murder as opposed to second, because there was evidence upon which a properly instructed jury, acting reasonably, could find that the murder was planned and deliberate and that the jury could conclude that the three accused participated in a beating of the deceased which left him senseless and immobile on the railway track. Second, the crown submitted that there is evidence upon which the three men could be convicted for first degree murder on the basis that the death was caused by the three of them by committing or attempting to commit the offence of forcible confinement, contrary to sec. 231 (5) (e). In this respect, the crown relied upon evidence that the three were in a position in such a way as to prevent Mr. Reid from escaping, and the evidence that Sandford held Mr. Reid for approximately five minutes while he was beaten by Henderson.

30The position on behalf of both of the applicants, Boutilier and Sandford, was that there was no evidence that either of them intended to kill Mr. Reid, or to cause him bodily harm that they knew was likely to cause to death and were reckless as to whether death ensued. There position was that the committal should be for the offence of manslaughter only.

The Impugned Decision

31The committing judge properly referred to the conventional test as formulated in United States of America v. Sheppard , 1976 8 (SCC) , [1977] 2 S.C.R. 1067. He also referred to refinement spelled out in R. v. Arcuri , 2001 SCC 54 () , [2001] S.C.J. No. 52 in respect of the limited weighing to be employed in determining whether the evidence is capable of giving rise to a reasonable inference necessary to satisfy some essential element.

32He concluded that there was direct evidence of the severe beating at the hands of the three accused, that it occurred at or near the position on the railway tracks where the deceased was struck by the train, and there was evidence that the train was the instrument of death. He further concluded that the deceased was immobile and incapacitated as a result of the beating. In my opinion, those findings are beyond controversy. He was also satisfied that a properly instructed jury, acting reasonable, could conclude that the accused meant to cause the decease bodily harm that they knew was likely to cause death when they viciously beat him and left him incapacitated on railway tracks where he could be struck by a train. While he did not mention the reckless requirement, it is implicit in the circumstances of this case.

33He then went on to consider some authorities on the issue of causation. He then concluded that “I am also satisfied that the jury could infer that the deceased was left incapacitated by the accused on the tracks in order for the train to strike and kill him. The jury may infer that the accused knew that the natural consequences of leaving someone incapacitated on railway tracks is that he will be struck and killed by a train, and that was their intention. That is evidence of a planned and deliberate murder of the deceased.” He then committed all three on a charge of first degree murder. He did so without addressing the other route to first degree murder entered by the crown of, namely, constructive first degree murder based on unlawful confinement.

Discussion

34Section 222 (1) defines homicide as causing the death of a human being by any means, whether directly or indirectly.

35In R. v. Nette , 2001 SCC 78 () , [2001] 3 S.C.R. 488, the court dealt with the issue of causation and held that the action must be a “significant contributing cause.” The court also observed that causation in respect of a manslaughter charge must be a “contributing cause outside the deMimimis range” and that in respect of a first degree murder during the commission of another offence, the causation must “be a substantial and interval part of the killing.” If it is alleged an intervening act occurs, such as to break the chain of causation, that is a question for the jury: R. v. Reid (2003), 2003 NSCA 104 () , 180 C.C.C. (3d) 151.

36It is commonplace that there is no direct evidence of intent in criminal cases. Juries are entitled to take into account the commonsense inference that people may be said to intend the natural consequences of their acts.

37The defence submits that there is no evidence at the preliminary enquiry to establish the frequency with which trains utilize the track in question, beyond that, no evidence that the accused had any such knowledge. There was, however, evidence before the jury in the form of photograph showing the tracks to be free from vegetative overgrowth or other signs that the tracks were disused. Moreover, this portion of the tracks was very close to the Brantford train station. There is evidence that all three of the accused knew each other, knew the victim, and knew many others at the club and party, which occupied part of the night’s activities. From that it seems to me a jury could infer that they too were from Brantford, and given the size of that city, further infer that its occupants would be aware that the train tracks were in common use. Very often, my opinion would be open to a jury to infer that both these applicants, by participating in the beating, meant to cause bodily harm – namely to participate in a beating, which could be found to have left the victim senseless and incapacitated on a railway track. If the jury were to so find, in my opinion, they could infer that the bodily harm caused by the applicants continued in the form of unconsciousness, which condition was known to be likely to cause death by means of being hit by a train while left on the tracks in that condition, and that by failing to take any steps to avoid the situation, both accused showed themselves to be reckless as to whether death ensued or not. Leaving an incapacitated person lying across a railway track is so inherently dangerous as to reasonably give rise to an inference that either or both of the intents required by s. 229 (a) was present.

38It is common ground between counsel that there was no evidence at the preliminary hearing that the accused persons in any way caused the deceased to choose to walk in the direction of the railway tracks. They argue that, accordingly, there was no evidence of planning and deliberation, such as might be the case if there were evidence that the accused had done anything to cause the victim to go to that location.

39However, if the jury were to draw the inference that the accused persons decided to leave the victim on the railway tracks, having meant to cause him bodily harm that they knew was likely to cause his death by being struck by a train, then in my opinion, the jury could conclude that the decision to leave the deceased in that position constituted evidence of the planning and deliberation of his death.

40The other crown theory supporting a committal for first degree murder is that the death was caused while the accused were committing to attempting to commit unlawful confinement. Here there is the evidence of Jennifer Barron that Sandford actually held the victim for approximately five minutes while Henderson was hitting him. There is also the evidence that these two applicants stood surrounding the victim in such a way that he could not escape. That evidence could be relied upon to find that unlawful confinement was made out.

41In R. v. Pritchard , 2008 SCC 59 () , [2008] 3 S.C.R. 195, the court upheld a conviction for first degree murder in circumstances where the victim was murdered during the course of a robbery, where the robbery contained a forcible confinement. The court held that first degree murder was made out where the murder was causally and temporally linked to the predicate offence of unlawful confinement, such that the killer’s course of conduct was a single transaction, as long as the unlawful confinement was not restricted to what was integral to the particular act of killing her. Here a jury could conclude that the unlawful confinement of the victim, which resulted in the victim becoming incapacitated, continued on even after the appellants left. The unlawful confinement resulted in a condition that perpetuated the confinement. An integral part of the confinement, and could be found to be part of the single transaction.

The Scope of My Jurisdiction

42I may only interfere when there has been a loss or excessive jurisdiction. Such jurisdictional error occurs where a preliminary enquiry justice commits the applicant to stand trial in the absence of any evidence as to an essential element of the offence. The determination of the preliminary enquiry judge is “entitled to the greatest deference.” As long as there is “some evidence” or a “scintilla of evidence” as to each essential element of the offence, then I am not to interfere. Certainly I am not entitled to substitute my view for that of the committing judge. See R. v. Des Champlain (2004), 2004 SCC 76 () , 196 C.C.C. (3d) 1 (S.C.C.); R. v. Sazant , 2004 SCC 77 () , [2004] 3 S.C.R. 635; R. v. Russell (2001), 2001 SCC 53 () , 157 C.C.C. (3 rd ) 1 (S.C.C.).

43For these reasons, in my opinion, there was before the preliminary enquiry judge some evidence available in support of each of the essential elements for first degree murder. In respect of the direct evidence, it is for the jury to determine whether to draw the inferences urged by the crown.

44I conclude that there was some evidence such that a committal to trial on charges of first degree murder was appropriate on either or both routes of planning and deliberate or constructive murder.

45These applications are dismissed.

Glithero J.