COURT FILE NO.: Information No. 10-1903
DATE: 2012-05-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Mark Moors and Dallas Mack, for the Crown
Applicant
- and -
Dylon Barnett, Kristopher McLellan and Kyle Mullen
Matthew C. Webber and Howard L. Krongold for Dylon Barnett, Patrick F.D. McCann for Kristopher McLellan and Michael A. Smith for Kyle Mullen
Respondents
HEARD: March 26 and 27, 2012,
at Ottawa, Ontario
Madam Justice B. R. Warkentin
Reasons on Application
[1] The respondents were charged with the first degree murder of Michael Swan. Following a 12 day preliminary inquiry before Justice H. L. Fraser of the Ontario Court of Justice the Respondents were committed to stand trial on second degree murder in addition to several other counts.
[2] The Applicant Crown seeks to overturn the Respondents' discharge on first degree murder on grounds that the preliminary inquiry judge committed jurisdictional error as follows:
a) He erred by weighing competing inferences.
b) He erred by usurping the role of the trier of fact.
c) He erred by considering evidence in isolation.
d) He erred by failing to consider the whole of the evidence.
[3] For the application to succeed, the Crown must establish the preliminary inquiry judge failed to exercise or exceeded his jurisdiction when he discharged the Respondents on first degree murder.
Background
[4] The Crown asserts that Kristopher McLellan ("McLellan") is the principal and that Dylon Barnett ("Barnett") and Kyle Mullen ("Mullen") are parties to the first degree murder of Mr. Michael Swan ("Swan") by operation of either section 231 (2), ("planning and deliberation"), or section 231 (5)(e), ("murder committed in the course of forcible confinement"), of the Criminal Code of Canada.
[5] The Respondents assert that, without making any admissions for the purpose of the trial, the evidence heard at the preliminary inquiry would support a committal on the offence of murder in the second degree.
[6] On August 17, 2011 Justice Fraser delivered his decision to discharge the Respondents from charges of first degree murder. He then ordered the Respondents to stand trial on the charge of second-degree murder as well as any included offences.
[7] On September 30, 2011, the Crown brought this application seeking certiorari and mandamus in relation to the ruling of Justice Fraser discharging the Respondents on the charge of first-degree murder.
Facts
[8] At the time of the offences, the Respondents were residents of Toronto. On the evening of February 21, 2010 they left Toronto and drove to Ottawa. Prior to arriving in Ottawa, they had been in telephone contact with a man named Sam Tsega ("Tsega") a friend of Barnett's. Upon arriving in Ottawa they met Tsega at his residence in Barrhaven. Tsega knew Swan but he and Swan were not friends.
[9] The Respondents left Tsega's residence in the early morning hours of February 22, 2010 and shortly thereafter broke into Swan's home. All three men were armed and disguised. McLellan and Barnett were armed with loaded handguns. Mullen was armed with a baseball bat.
[10] Upon entering the home, the Respondents went directly into Swan's bedroom where they found Swan, Swan's girlfriend, Kaitlyn Scott and his friend Tyler Tanguay. They ordered everyone to get down, put their hands up and get rid of their cell phones.
[11] They then asked where the weed, money and gun were located. Swan, Scott and Tanguay claimed not to know. During this time McLellan pressed a gun against Swan's back and seconds after Swan claimed not to know about the money and drugs, McLellan shot Swan.
[12] Scott testified at the preliminary inquiry that Swan was shot when he reached for his cell phone and that it happened very quickly. Tanguay testified that Swan was shot 5 to 10 seconds after the three men came into the bedroom.
[13] Swan died within a minute or two after the shooting. There was no reaction from any of the Respondents to the shooting of Swan. They continued to press Scott and Tanguay for the location of the drugs and money.
[14] The three accused then searched the rest of the home and found drugs and money. They corralled two other individuals who were in the home at the same time and placed them in first a bedroom and then in the basement sauna. The Respondents then left with the drugs, money, mobile phones and other possessions of the persons who were in the residence at the time of the shooting. They were arrested by Ontario Provincial Police officers on Highway 40l later that morning while driving back to Toronto.
[15] At the time of their arrest, Mullen was in possession of the handgun that McLellan used to shot Swan and Barnett was in possession of a loaded gun. The Respondents had property of the victims on their persons and in the vehicle and were in possession of Swan's drugs and money.
[16] At the preliminary hearing, the Crown submitted that there were two routes to committal on first degree murder:
a) That the murder was planned and deliberate and therefore first-degree murder pursuant to section 231(2) of the Criminal Code of Canada; or
b) That the murder was committed during the course of an unlawful confinement and therefore constituted first-degree murder pursuant to s. 231(5)(e) of the Criminal Code of Canada.
[17] The Crown now submits that the preliminary inquiry judge committed jurisdictional error when:
a) He determined there was insufficient evidence of planning and deliberation to permit a reasonable jury, properly instructed, to find the Respondents guilty of first degree murder.
b) He determined there was insufficient evidence that the shooting of the deceased occurred while the Respondents were committing an offence under section 279 of the Criminal Code (during the course of an unlawful confinement) to constitute first degree murder under section 231(5)(e) of the Criminal Code.
The Position of the Crown
Re: Planning and Deliberation and Post Offence Conduct
[18] The Crown asserted that with respect to the issue of planning and deliberation the preliminary inquiry judge erred by weighing competing inferences, failing to consider the whole of the evidence with respect to the post offence conduct of the Respondents and that he considered evidence in isolation rather than the whole or cumulative effect of the evidence.
[19] The Crown claimed that the preliminary inquiry judge weighed competing inferences when he agreed with the defence submission that "the evidence available for the court's consideration is suggestive of an impulsive murder."
[20] The Crown contended that even if it were true that the evidence was suggestive of an impulsive murder, the preliminary inquiry judge should have acknowledged that the evidence also permitted an inference that the murder was planned and deliberate. It was the Crown's position that the relevant and permissible inquiry for the preliminary inquiry judge should not have been whether the evidence was suggestive of something other than planning and deliberation but rather whether there was evidence upon which a jury could infer it was planned and deliberate.
[21] The Crown claimed that there was evidence from which it could be inferred that the murder was planned and deliberate and therefore when the preliminary inquiry judge agreed with the defence position that the evidence was "suggestive" of an impulsive murder, he committed jurisdictional error by weighing competing inferences.
[22] The Crown also argued that the preliminary inquiry judge erred by failing to consider the whole of the evidence. In particular, that the preliminary inquiry judge did not properly consider the post offence conduct of the respondents. The Crown pointed to the evidence that showed that the Respondents did not react to the shooting of Swan in a manner that showed shock or surprise, particularly by the non-shooter Respondents. According to the Crown, the lack of a reaction by the Respondents was consistent with a plan that was executed (first degree) rather than one that was a probable consequence (second degree).
[23] Similarly, there was communication with Tsega after the shooting that the Crown claimed was more consistent with a murder that went as planned than a robbery that went awry.
[24] The preliminary inquiry judge found that:
"...the after the fact conduct ...might be relevant in establishing that the accused were involved in the alleged crime, but has no probative value in determining the level of the accused's culpability. The after the fact conduct in the case at bar does nothing to advance any argument that the murder of Michael Swan was planned and deliberate."
[25] The Crown argued that it was the trier of fact who should determine level of culpability of the Respondents by considering their post offence conduct, not the preliminary inquiry judge. By making the finding he did regarding the post offence conduct, the preliminary inquiry judge usurped the role of the trier of fact and thus committed a jurisdictional error.
[26] Finally, the Crown submitted that the preliminary inquiry judge also erred by considering evidence in isolation. The Crown alleged that the preliminary inquiry judge failed to consider the cumulative effect of the evidence in favour of the Crown but rather considered aspects of the evidence in isolation from the whole when he found the shooting was suggestive of an impulsive murder rather than planned and deliberate.
Re: Murder During Unlawful Confinement
[27] With respect to the second route of committal on first degree murder, that being the commission of murder during unlawful confinement, the Crown submitted that the preliminary inquiry judge usurped the role of the trier of fact when he found that the acts committed by the Respondents were not an unlawful confinement "to the degree required by section 231(5)(e)".
[28] The Crown claimed that this finding is one exclusively reserved for the trier of fact and that the preliminary inquiry judge's only relevant and permissible inquiry was, not whether it was an unlawful confinement but rather whether a reasonable jury properly instructed could so find.
[29] It was the Crown's position that because the preliminary inquiry judge found that there was some evidence that the Respondents committed second-degree murder and some evidence that they unlawfully confined the victim, it was exclusively for the trier of fact to determine whether or not there was the offence of murder committed during an unlawful confinement.
The Position of the Respondents
[30] Counsel for the Respondents submitted that the preliminary inquiry judge did not commit any jurisdictional errors with respect to the issues of planning and deliberation, his characterization of the post offence conduct or murder committed during an unlawful confinement.
Re: Planning and Deliberation and Post Offence Conduct
[31] With respect to the allegation that the preliminary inquiry judge weighed competing inferences, counsel for the Respondents submitted that the preliminary inquiry judge, having examined the evidence to support the inferences sought by the Crown, determined that there was no logical inference to be made that the act of murder included planning and deliberation. He found that the evidence presented at the hearing could at best lead to impermissible speculation.
[32] Counsel for the Respondents argued that it was not a jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and in the absence of direct evidence on each essential element of the offence, to conclude that the evidence, both direct and circumstantial, was insufficient to meet the test for committal on first degree murder. Counsel for the Respondents claimed that when the preliminary inquiry judge stated, "the evidence available for the court's consideration is suggestive of an impulsive murder'' he was not weighing inferences but was drawing the only logical inference that could be adduced from the evidence.
[33] Counsel for the Respondents submitted that it was within the preliminary inquiry judge's jurisdiction to consider the inferences the Crown sought to adduce and reject them by determining that no logical inference could be made for a charge of first degree murder based on the totality of the evidence.
[34] It was the position of counsel for the Respondents that even if the preliminary inquiry judge was incorrect and there was sufficient evidence to support the inference of planning and deliberation, this is not a reviewable error. They argued that no jurisdictional error is committed where the preliminary inquiry judge incorrectly rules on the admissibility of evidence or incorrectly decides that a particular question or line of questioning cannot be pursued at the preliminary inquiry because those errors are errors of law, not jurisdiction and are not reviewable on a certiorari application.
[35] Counsel for the Respondents stated that it was not only within the preliminary inquiry judge's jurisdiction to determine whether or not the evidence was of sufficient weight to commit the accused of first degree murder, he was required to do so with respect to the circumstantial evidence.
Re: Failing to Consider the Whole of the Evidence
[36] Counsel for the Respondents submitted that the preliminary inquiry judge did consider the whole, or totality, of the evidence. The preliminary inquiry judge wrote lengthy reasons (32 pages) in which he summarized the evidence and then outlined the positions of both the Crown and defence on each of the areas of planning and deliberation, post offence conduct and murder during unlawful confinement.
[37] Counsel for the Respondents claimed that having laid out the relevant evidence of the Crown's case, the preliminary inquiry judge determined that on the whole of the evidence there was "no proof of any plan to kill Swan".
[38] To support their position, they argued that the preliminary inquiry judge did turn his mind to the post offence conduct and made his determination that it did not "advance any argument that the murder of Michael Swan was planned and deliberate". In coming to this conclusion they claimed the preliminary inquiry judge considered the totality of the evidence and not just certain evidence in isolation. They noted that the preliminary inquiry judge specifically outlined the major highlights of the post offence conduct, including:
- all three accused directing questions at the witnesses,
- they assisted each other with a search of the house,
- they assisted each other with controlling the witnesses,
- they left the residence together,
- their lack of reaction to Swan being shot,
- the asking of the same questions of the witnesses both before and after the shooting, and
- the sharing of the proceeds of the robbery.
[39] Counsel for the Respondents argued that the evidence at the preliminary inquiry required the drawing of inferences about how the Respondents' conduct might lead to a conclusion that the alleged act was planned and deliberate. It was the Respondents' position that the evidence was still subject to scrutiny by the preliminary inquiry judge as to whether the inferences sought by the Crown were permissible or mere impermissible speculation.
[40] The preliminary inquiry judge determined that this evidence was simply not sufficient to establish the planning and deliberation elements of first degree murder and in doing so, he rejected the inferences that the Crown was asking him to make. It was the position of counsel for the Respondents that the preliminary inquiry judge correctly applied the applicable tests for examining the evidence before reaching his decision.
Re: Post Offence Conduct
[41] Counsel for the Respondents submitted that it was within the preliminary inquiry judge's jurisdiction to consider whether there was sufficient evidence to support an inference that the post offence conduct could be proof of planning and deliberation. In this case, he did not.
[42] The Crown contended that the preliminary inquiry judge erred by considering evidence in isolation, counsel for the Respondents argued that the preliminary inquiry judge specifically turned his mind to the totality of the evidence, and then rejected that there was evidence to support an inference of planning and deliberation. They noted that the preliminary inquiry judge stated, "after reviewing all of the evidence presented at this preliminary inquiry, I find that there is no evidence of any plan to kill the victim."
[43] Counsel for the Respondents then submitted that it was not necessary for the preliminary inquiry judge to specifically address each and every piece of evidence and/or possible inference. They also argued that as long as the preliminary inquiry judge clearly demonstrated that he turned his mind to and considered the whole of the evidence, then even if he was wrong about the evidence, that error is not a reviewable error.[^1]
Re: Murder During Forcible Confinement
[44] Counsel for the Respondents also disagreed with the Crown's argument that the preliminary inquiry judge usurped the role of the trier of fact. They submitted that the preliminary inquiry judge did not make any determinations of fact when he found that there was no evidence to support the position of the Crown that the murder occurred during a forcible confinement of the victim. They claimed he merely applied the best evidence available from the preliminary inquiry to the relevant law about forcible confinement as it relates to first degree murder.
[45] It was the position of counsel for the Respondents that the role of the preliminary inquiry judge is to determine whether a reasonable jury properly instructed could arrive at a finding of guilt. To make this assessment the preliminary inquiry judge must be able to apply the law to the available evidence. Counsel for the Respondents submitted that the test applied by the preliminary inquiry judge required that for first degree murder to be made out on the basis of forcible confinement, the actual confinement of Swan had to last a significant period of time.
[46] The Respondents noted that only evidence available to the preliminary inquiry judge from the witnesses at the preliminary inquiry was that the gun shot occurred within mere seconds of the Respondents entering the room. There was no other evidence available to the preliminary inquiry judge about an alleged forcible confinement. Counsel for the Respondents argued that the preliminary inquiry judge could not have been weighing evidence, thereby usurping the role of the trier of fact when all he did was to apply the only evidence available to the relevant law. Based upon that, he determined that there was not sufficient evidence of murder during an unlawful confinement to put forward to a trier of fact at trial.
Scope of Review
[47] The scope of review on certiorari is limited to determining if there has been a jurisdictional error. The jurisdiction of the preliminary inquiry judge to commit or discharge is contained in section 548(1) of the Criminal Code:
- (1) When all the evidence has been taken by the justice, he shall:
(a) if in his 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; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
[48] The Supreme Court of Canada described the role of the preliminary inquiry judge in coming to a determination as to whether or not to commit an accused of a particular offence as follows:
"The jurisprudence of this Court leaves no doubt that a preliminary inquiry judge commits a jurisdictional error by committing an accused for trial under s. 548(1)(a) when an essential element of the offence is not made out.... Conversely, it is not a jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b).... In that situation, it would be improper for a reviewing court to intervene merely because the preliminary inquiry judge's conclusion on sufficiency differs from that which the reviewing court would have reached."[^2]
[49] The preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict. The preliminary inquiry judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown intends to ask the jury to draw.[^3]
[50] The preliminary inquiry judge must also, while recognizing the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty.[^4]
[51] The Supreme Court of Canada distinguished between the scope of the preliminary inquiry judge in circumstances where the Crown relies on direct evidence with respect to the essential elements of the offence and where the Crown seeks a committal on the basis of circumstantial evidence.
[52] When the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial regardless of the existence of defence evidence. Conversely, when the Crown's evidence consists entirely of, or includes, circumstantial evidence, the preliminary inquiry judge must engage in a limited weighing of the whole of the evidence to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt.[^5]
[53] The task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. Instead, it should be regarded as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.[^6]
[54] There are two ways in which a preliminary inquiry judge, when drawing inferences, might erroneously engage in impermissible speculation:[^7]
a) The evidence must establish the primary facts. If the primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation; and
b) Where the proposed inference cannot reasonably and logically be drawn from the established primary facts, the drawing of that inference becomes impermissible speculation.
Analysis
[55] The preliminary inquiry judge, after hearing evidence and submissions over many days, reserved his decision before delivering a 32 page judgment in which he found that there was insufficient evidence of either planning and deliberation or a discrete act of unlawful confinement distinct from the act of killing. He committed the Respondents on second degree murder and other related offences.
[56] In his judgment, the preliminary inquiry judge first set out the Crown's position on planning and deliberation and listed all the evidence relied on by the Crown. He then did the same for unlawful confinement after which he reviewed the position of the defence on both issues. The preliminary inquiry judge then correctly stated the test for committal on first degree murder and quoted extensively from the relevant case law.
[57] The preliminary inquiry judge identified the definitions of planning and deliberation and, after reviewing the authorities relied on by both the Crown and defence, concluded that there was no evidence of a plan to murder the deceased as submitted by the Crown. The evidence, he observed, was more suggestive of an impulsive murder.
[58] The Crown argued that, in making the comment that the evidence was more suggestive of an impulsive murder, the preliminary inquiry judge was weighing competing inferences. I do not accept the Crown's position on this point. It is apparent that the preliminary inquiry judge in assessing the sufficiency of the evidence as he is required to do concluded that there was simply no evidence of planning and deliberation which would justify a committal on first degree murder. At page 20 of his judgment, after reviewing the evidence relied upon by the Crown, he stated:
"I have considered all of the evidence presented at this preliminary inquiry and there is no available inference that the three accused had a plan to kill Mr. Swan prior to entering his residence, or kill if necessary if he did not immediately provide them with the information they were seeking. For a court to draw such an inference based on the available evidence, would amount to the kind of speculation and conjecture that clearly is not permissible even at the preliminary inquiry stage."
[59] The preliminary inquiry judge then concluded that the post offence conduct of the Respondents had no probative value in determining the level of culpability. The absence of a comment by the preliminary inquiry judge specifically setting out his obligation to draw the permissible inferences most favourable to the Crown does nothing to convince me that he failed to do so. His reasons clearly show that he understood the law and that he was applying the correct analysis before reaching his conclusions.[^8]
[60] Regarding the issue of planning and deliberation, the reasons of the preliminary inquiry judge in essence found there was no air of reality to the Crown's position on the evidence before him.
[61] The preliminary inquiry judge next dealt with the unlawful confinement issue. He again reviewed and quoted from the authorities relied on by both the Crown and defence. He found that the shooting and the alleged confinement did not constitute separate acts because of the manner in which the shooting occurred, particularly the timing of the shooting. The preliminary inquiry judge found that the evidence did not meet the threshold requirement for unlawful confinement as established in the case of R. v. Pritchard.[^9]
[62] In his summation of his reasons, the preliminary inquiry judge again confirmed that he had considered all of the evidence and submissions and found that neither route to committal on first degree murder as submitted by the Crown could succeed.
[63] The preliminary inquiry judge's reasons demonstrate that he was well aware of the Crown's arguments and his own obligations regarding an analysis of the Crown's position on the evidence. He carefully analyzed the evidence in order to determine whether or not it was sufficient so that a properly instructed jury could return a verdict of first degree murder.
[64] I do not accept that the preliminary inquiry judge arrived at his decision by weighing competing inference, or by failing to consider all of the possible inferences when considering his decision as a whole, that he considered evidence in isolation, nor do I accept that he usurped the role of the trier of fact.
[65] The Crown's Application is therefore dismissed.
Madam Justice B. R. Warkentin
Released: May 11, 2012
COURT FILE NO.: Information No. 10-1903
DATE: 2012-05-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
Dylon Barnett, Kristopher McLellan and Kyle Mullen
Respondents
REASONS ON APPLICATION
Warkentin J.
Released: May 11, 2012
[^1]: R v. Young, [2009] O.J. No. 5879 at para 13 (Ont. S.C.J.) affirmed on appeal, 2010 ONCA 156 [^2]: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 at para 23 [^3]: R v. Arcuri, 2001 SCC 54, [2001]157 C.C.C. (3d) 21 at para 1(S.C.C.) and United States v. Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067 at para 8. [^4]: R v. Arcuri supra at para 23 [^5]: R v. Arcuri supra at para 30 [^6]: R v. Arcuri supra at paras 29-30 [^7]: R. v. Dadshani, [2006] O.J. No. 1857 at para 11 (Out. S.C.J.) [^8]: R v. Young, [2009] O.J. No. 5879 at para 12 (Ont. S.C.J.) [^9]: R. v. Pritchard, [2008] 3 S.C.R. 195, 2008 SCC 59