ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: M.O. 109/11
DATE: 20120119

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – J.B. Respondent

John Neander, for the Crown
M. Dineen and A. Boni, for the Respondent

HEARD: January 16, 2012

M. DAMBROT J.:

1J.B. and K.C., young persons under the Youth Criminal Justice Act , were charged with the first degree murder of Neil Armstrong on July 16, 2003 in the entertainment district of Toronto. A preliminary inquiry was held before Bovard J. in March and April, 2011. At the end of the hearing of evidence, K.C. consented to an order that he stand trial. On May 13, 2011, the preliminary inquiry judge discharged J.B. In his careful reasons, he concluded that there was insufficient evidence to order him to stand trial on a charge of first degree murder, second degree murder or manslaughter.

2The Crown brings this application in the nature of certiorari with mandamus in aid, asking the Court to quash the order discharging the respondent, and remit the matter to the preliminary inquiry judge requiring him to order the respondent to stand trial on a charge of first degree murder, or in the alternative on a charge of second degree murder or manslaughter.

The Evidence

3I will begin by summarizing some of the evidence adduced by the Crown at the preliminary inquiry.

4In August 2002 two groups of prisoners in the Toronto Youth Assessment Centre were involved in an altercation. J.B. and K.C. were in one group and Armstrong and two others referred to as Pentime and Poochi were in the opposing group. After the fight, the two groups agreed to co-exist peacefully. There is some evidence that the problems were forgotten. The events surrounding this homicide suggest otherwise.

5Late in the evening on July 15, 2003, J.B., K.C. and some friends were in the entertainment district in Toronto. While inside Money, a night club in that area, K.C. had a run-in with Mr. Armstrong and some of his friends. As a result, K.C. called Brandon Brooks and asked him and Cleavon Springer to come to the club and to bring firearms.

6Springer testified as a Crown witness. He said that in the evening of July 15, 2003, he was at home with his friend Brooks. At around 9:00 p.m. or 10:00 p.m., K.C. called Brooks about the altercation at Money, and asked him to meet him at the club with Mr. Springer and to bring their firearms. Brooks told Springer to bring his firearm because it was a serious situation and that “most likely firearms are going to be required”. Brooks had a 9 mm hand gun, possibly a Tokarev, and Springer had a Llama 9 mm hand gun.

7Springer and Brooks got into Springer’s car and went to Money, which was located around Richmond Street and John Street. It took them about twenty minutes to drive to the club. Springer parked beside the club and the two men remained in the car. After about two minutes, K.C. arrived and got into the car. He sat in the back, behind the front passenger seat, and told the two men what had taken place in the club. The windows of the car were open, and Jonathan Chambers and Yves Gandwimbi listened to the conversation from outside the car. J.B. was in the vicinity.

8K.C. told Springer that “we” had bumped into Pentime and Poochi in the club, that there was bad blood between him and them and that he scuffled or exchanged words with them. Springer thought that “we” included Chambers and Gandwimbi. K.C. said that as a result of the confrontation in the club, they were going to wait until Pentime and Poochi left the club and then confront them with their firearms. Springer said that he and K.C. were planning an ambush to be “spearheaded” by K.C. As a result, K.C. needed the most reliable pistol. Although K.C. had a firearm, it was not reliable so “because of the severity of the situation” he asked Springer to lend him his, which he did reluctantly. Springer was going to be part of the confrontation, but he wasn’t supposed to play an active role. He wasn’t going to be “physically carrying out … any type of action.” K.C. gave his own firearm to Chambers.

9After the guns were exchanged, Springer, K.C. and Brooks got out of the car, and the plan was relayed to J.B., Gandwimbi, “White P.” and possibly two others. K.C. told them that they were going to wait for their targets to come out of the club and then confront them.

10The group then split up into subgroups and went into ambush formation so that each subgroup could confront the targets from a different angle when they came out into the street. Brooks and Chambers formed the first group and Springer, K.C., J.B., and possibly Gandwimbi formed the second group. Mr. Chambers told White P. that he was to be a getaway driver. The only ones that had firearms were K.C., Brooks and Chambers. K.C. then set up beside Money, slumping into the corner. They all stood apart, but within view of each other, waiting for their targets to come out into the street.

11After five to fifteen minutes they all re-grouped in the parking lot beside Money and revised their plan. They decided that Gandwimbi would go across the street and keep a lookout for the targets and as soon as they came out of the club he would call the others to tell them in what direction they were headed. At this point Springer, Chambers, J.B., Brooks and K.C. were in the parking lot beside Money and across the street from the club where the targets were.

12When the targets came out of the club, they split up. Gandwimbi made the telephone call and told the others that they were out and in which direction they were headed. Some of the targets headed toward John Street, and Brooks and Chambers followed them. Springer, K.C. and J.B. lost sight of Brooks and Chambers. Springer then heard four to six shots fired in the direction that Brooks and Chambers had gone. He believed that Brooks and Chambers had fired the shots.

13At this time, Springer, K.C. and J.B. were walking towards Richmond Street, expecting to find their targets. They quickened their pace when they heard the shots. They saw Armstrong and possibly two other persons cross the street and walk toward Money where Springer, K.C., and J.B. were standing. K.C. and J.B. approached Mr. Armstrong in the middle of Richmond Street. K.C. had the gun at his side as he approached Mr. Armstrong.

14As K.C. and J.B. approached Armstrong, K.C. pointed the gun at Armstrong. K.C. said something to Armstrong and Armstrong took off running towards the parking lot followed by K.C., J.B. and Springer. They chased Armstrong once or twice around a car that was parked in front of Money and then Armstrong ran into Richmond Street. K.C. still had his gun out during the chase. J.B. was right next to K.C. J.B. tripped Armstrong deliberately from behind by kicking his legs out from under him, causing him to fall face first onto the street. Then J.B. backed up three or four feet and stood there as K.C. positioned himself in front of Armstrong. As Armstrong was on his knees trying to get up and run away, K.C. shot him and he fell back on the ground. Springer, K.C. and J.B. fled the scene.

15A post mortem examination of Armstrong was performed on July 17, 2003. The cause of death was identified as a gunshot wound to the chest.

Discussion

16It hardly needs to be said that the evidence of the shooting of Armstrong by K.C. was sufficient to justify ordering K.C. to stand trial on a charge of second degree murder. Further, the evidence that K.C. lay in wait for members of a group that he had just had an altercation with to emerge from a club, and that he had armed himself with a firearm for the purpose of a confrontation with them is sufficient evidence of planning and deliberation to justify ordering him to stand trial for first degree murder. I turn then to a consideration of the case against J.B.

17It also seems to me to be beyond controversy, despite the decision of the preliminary hearing Judge, that the evidence immediately preceding the shooting was sufficient to justify ordering J.B. to stand trial for second degree murder as an aider within the meaning of s. 21(1) (b) of the Criminal Code . Here I have in mind the evidence that: J.B. was in K.C.’s company as K.C. approached Armstrong, pulled out a gun and pointed it at him; J.B. pursued Armstrong with K.C. when Armstrong attempted to flee; J.B. tripped Armstrong deliberately from behind, kicking his legs out from under him causing him to fall face first onto the street, and then backed up and stood by as K.C. positioned himself in front of Armstrong and shot him.

18Tripping Armstrong undoubtedly gave K.C. an opportunity to shoot Armstrong, assisting K.C. in the commission of the offence of murder. Clearly this is evidence of the actus reus of murder as an aider on the part of the respondent. It would also be open to a trier of fact to infer the requisite mens rea from the kick, viewed in light of the surrounding circumstances. The necessary mens rea , of course, is knowledge that K.C. intended to cause Armstrong’s death, or meant to cause Armstrong bodily harm that he knew was likely to cause his death, and was reckless whether death ensues or not, together with the intention to assist K.C. in the commission of the crime. (See R. v. Briscoe , 2010 SCC 13 , 253 C.C.C. (3d) 140 at paras. 17-18 .)

19In addition, the evidence of J.B.’s knowledge of and involvement in K.C.’s laying in wait for members of a group that K.C. had had an altercation with to emerge from a club for the purpose of a confrontation with them, taken together with the remainder of the evidence – particularly the evidence of J.B.’s role in the ultimate shooting – can readily support an inference that the respondent had the mens rea for first degree murder as an aider. In this instance the mens rea is knowledge that the murder was planned and deliberate. (See Briscoe at para. 17 .)

20It is plain, however, that the preliminary inquiry Judge did not reach these conclusions because he never considered what inferences might be drawn from Springer’s evidence of J.B.’s actions prior to and at the time of the killing in his analysis. Instead, he focussed exclusively on the words attributed to J.B., K.C., Brooks, Gandwimbi and Springer by Springer in his evidence, and Springer’s evidence about the extent of his own knowledge. Specifically, he noted that Springer testified that:

• although they were bringing firearms, at that point he did not know whether the firearms were going to be fired;

• it is not every time you have a firearm that it is going to be used or you know it is going to be used;

• he was “not naïve to the fact that, yes, there is a possibility that it can be used, but for me to say I know 100 per cent that’s what’s going to happen I would be speculating”;

• he has been in situations in clubs and parties where there were firearms, but nothing happened;

• the plan was to confront the individuals with whom they had an altercation inside the club;

• from what K.C. said, he understood there was bad blood with “them” and that they were going to wait until they left the club and confront them with their firearms;

• although it wasn’t really said if the confrontation would be physical or with firearms, firearms had to be present;

• the conversation inside Springer’s car took place with the rear passenger window open, and with Chambers and Gandwimbi listening from outside, but J.B. was not as close to the car as them;

• he and K.C. were planning an ambush to be spearheaded by K.C.;

• K.C.’s firearm was not as reliable as Springer’s, and because of the “severity of the situation” K.C. borrowed Springer’s firearm and gave his to Chambers;

• Springer was concerned about staging the confrontation in such a public place, because although “no one said they are going to shoot this person or shoot that person” there was going to be a confrontation, something he knew was wrong, and he didn’t want to do it in front of people;

• the plan to confront the targets when they came out was relayed to the others, including J.B.;

• when they got out of Springer’s car they discussed with “possibly” everyone who would go with whom and where;

• Springer was concerned because although no one said that they were going to shoot anyone, this was a situation that he knew possibly could have a bad outcome: “If a shooting takes place and someone does get hit he can be hurt or killed”; and

• He did not know who they were looking for but K.C. knew, and J.B. “possibly” knew.

21It was as a result of Springer’s circumspection concerning any statement by K.C. that someone was actually going to be shot, together with his uncertainty about whether or not J.B. heard the conversation in the car that the preliminary inquiry Judge discharged the respondent. He obviously thought that because the Crown had called a witness to the discussions amongst the young men who ambushed Armstrong, the trier of fact could only determine J.B.’s state of mind from the words spoken in those discussions, and was somehow foreclosed from drawing inferences from the acts of J.B. examined in their context. I do not come to this conclusion with haste, but only as a result of careful consideration of what the preliminary inquiry Judge actually said in his reasons. For example, he stated, at paragraph 73 of his reasons:

73 In these circumstances, I agree with the defence that the only plan that J.B. could have known about was a plan to simply confront Mr. Armstrong because that was the only plan they had. Whether it was going to be just a physical confrontation or if firearms were going to be used was not discussed . No one said that anyone was going to be shot. It is true that Mr. Springer’s opinion was that it was a situation in which if someone got shot they could be hurt or killed, but that was just Mr. Springer’s opinion. It was not a plan . It was mere speculation that a shooting would occur, because according to his own testimony, one was not planned. [Emphasis added.]

22When the preliminary inquiry judge said that the only plan that J.B. could have known about was a plan to confront Armstrong, “because that was the only plan they had,” when he said that “if firearms were going to be used it was not discussed,” when he said that “[n]o one said that anyone was going to be shot,” and when he said that no shooting was planned, he fell into serious error.

23First, he seemed to assume that the trier of fact would be required to accept the evidence of Springer that he was unaware of a plan to do more than confront Armstrong. Needless to say, this is wrong. The trier of fact would be entitled to accept other parts of Springer’s evidence, while not accepting his assertion that he knew of no plan to shoot or kill Armstrong.

24Second, Springer did not, and could not know what passed between K.C. and J.B. in his absence, and so even if this part of his evidence is accepted by the trier of fact, it would not preclude greater knowledge on the part of J.B., who had been on the scene long before Springer arrived, and who had the opportunity to speak with K.C. after the discussion in the car.

25And third, as I have already said, the preliminary hearing Judge failed to consider what inferences might be drawn from the acts of J.B., viewed in context.

26It is jurisdictional error for a preliminary inquiry judge to determine the available inferences on the assumption that the trier of fact was obliged to accept all or none of a witness’s evidence. It is also jurisdictional error for a preliminary inquiry judge to fail to consider the whole of the evidence in deciding whether or not there was sufficient evidence to order an accused to stand trial. The preliminary inquiry judge in this case made precisely these errors.

27I note that the two errors that I have identified are intertwined. In my view, to give only the most obvious example, a trier of fact would be entitled to infer the requisite intent for second degree murder, in addition to the actus reus , simply from the evidence that:

• K.C. and J.B. confronted Armstrong together;

• K.C. pointed his gun at Armstrong and said something to him;

• Armstrong immediately took flight, and while K.C. still had his gun out, J.B. gave chase;

• When he had the opportunity, J.B. deliberately tripped Armstrong by kicking his legs out from under him, causing him to fall face first onto the street, and then stood back; and

• K.C. then shot and killed Armstrong.

28The failure of the preliminary inquiry judge to recognize that an inference of the intent for second degree murder on the part of J.B. was readily available could only have flowed from jurisdictional error: his erroneous belief that the trier of fact was obliged to accept all or none of Springer’s evidence, and his failure to take into consideration the totality of the evidence. What is more, these same errors resulted in his failure to recognize that there was sufficient evidence of planning and deliberation to order the respondent to stand trial for first degree murder.

29There is no question that the failure of a preliminary inquiry Judge to consider the whole of the evidence, by effectively ignoring a body of circumstantial evidence is jurisdictional error. That is precisely what happened in R. v. Deschamplain , 2004 SCC 76 , 196 C.C.C. (3d) 1 , where Major J. stated for the Court, at para. 21:

The absence of any reference to this circumstantial evidence in the reasons leads me to conclude that [the preliminary inquiry Judge] failed to consider the whole of the evidence as required by s. 548(1)(b) [of the Criminal Code .] As a result, she committed jurisdictional error and her decision is subject to review on certiorari.

30The respondent argues that even if I am of the view that the preliminary inquiry judge erred in his appreciation of the evidence, he made no jurisdictional error, and I am not entitled to intervene. In support of his position, he points out that the preliminary inquiry judge recited much of the evidence that I say he failed to take into consideration in his analysis, and that he adverted to the possibility of inferring knowledge of K.C.’s intention to shoot Armstrong from the circumstances surrounding the shooting. I do not agree.

31The first of these points is readily disposed of. A summary of the evidence of at the outset of a judgment is no indication that all of the evidence was taken into account in the analysis of the issues. Here the reasons make clear that he did not take into consideration the totality of the evidence.

32With respect to the second point, no doubt in some cases a judge will demonstrate that he or she is alive to an issue and has taken it into consideration in the course of submissions. But that is a far cry from what happened here. All that happened here is that during counsel for the respondent’s argument concerning second degree murder, the preliminary inquiry Judge asked counsel, in effect, whether knowledge in J.B. that K.C. intended to shoot Armstrong once K.C. drew his gun, pointed it at him and began chasing him was evidence that J.B. knew that K.C. intended to shoot Armstrong. Counsel said that it was not. This is hardly an indication that the preliminary inquiry Judge took this evidence into consideration in his ultimate analysis of the evidence. A judge is required to do more than to indicate in the course of submissions that the possible relevance of evidence had crossed his mind. The judge must give some indication that it was taken into consideration in the ultimate reasoning process. This was made clear by Major J. in Deschamplain , where he stated, at para. 34:

[…] a preliminary inquiry judge is not required to render extensive reasons but must demonstrate that he or she met the statutory and mandatory duty to consider the whole of the evidence. It hardly needs saying that had the proceedings been a trial and not a preliminary inquiry, an acquittal of the respondent for the reasons given by Serré J. not to commit would likely be sustained. However, the mandatory duty imposed on the judge at a preliminary inquiry to consider the whole of the evidence requires some clear indication that this obligation was met. In my view, the reasons at issue here do not satisfy this requirement.

33Similarly here, the reasons do not satisfy this requirement. On the contrary, the preliminary inquiry Judge’s reasoning process demonstrates that this requirement was not met.

Disposition

34For reasons of efficiency, I would order the respondent to stand trial on a charge of first degree murder myself, but I am without the jurisdiction to do so. That conclusion was first reached in Ontario in R. v. Thompson , (2005) 2005 8664 (ON CA) , 74 O.R. (3d) 721 (C.A.). In that case, Sharpe J.A. concluded that that on certiorari , an application judge has no jurisdiction to commit the appellant for trial. The appropriate order is to quash the discharge and remit the matter to the preliminary inquiry judge for further consideration.

35In R. v. Nash (2005), 22 M.V.R. (5th) 203, [2005] O.J. No. 3783 (C.A.) , the Court of Appeal went further. In that case, I had quashed a discharge on certiorari and directed the preliminary inquiry judge to order the accused to stand trial. The Court of Appeal held that I had correctly quashed the discharge, but that in light of Thompson , I could not direct the preliminary inquiry judge to order the accused to stand trial. The Court amended my order and referred the matter back to the preliminary inquiry judge for determination of the matter in accordance with the order.

36But even Nash does not fully resolve the issue. In Nash , there had also been an application for mandamus . The Court of Appeal did not consider whether or not that widened the scope of the remedial order that could be made. But the possibility that mandamus might make a difference had been mentioned in Thompson . Sharpe J.A. stated, at para. 21:

Finally, I would point out that the Crown does have other remedies at its disposal in cases where committal is inevitable. Where the Crown wishes to assert that no result other than committal is legally possible, the traditional panoply of prerogative remedies provides an answer. An order of mandamus , requiring the preliminary inquiry judge to commit, is available to minimize unnecessary procedural wrangling or delay. […]

37Mandamus was recently employed to that end by the Court of Appeal in R. v. Gray , 2012 ONCA 7 , [2011] O.J. No. 6062 . In an endorsement by a panel of the Court that notably included Sharpe J.A., and after referring to Thompson , the Court stated, at paras. 10-11:

While the Crown does not appear to have asked the application judge in either or written submissions to issue an order of mandamus , it is clear from the notice of application and from the reasons of the application judge that there was an application for mandamus in aid of certiorari.

In our view, in these circumstances, the appropriate order is to allow the appeal in part and issue a mandamus order remitting the matter to the preliminary inquiry judge requiring him to commit the appellant for trial on the charge of second degree murder.

38In my view, this case is similar to Gray . On a proper consideration of the evidence, no result other than an order to stand trial on a charge of first degree murder is legally possible. As a result, I would dispose of this matter by granting the application, quashing the discharge of the respondent, and remitting the matter to the preliminary inquiry Judge with my direction to order the respondent to stand trial on the charge of first degree murder.

39The accused is ordered to appear before the preliminary inquiry judge at a time and place agreed upon by counsel, but no later than six weeks after the release of this decision, failing which a warrant may issue for the arrest of the accused at the instance of the Crown and requiring the accused to be brought before the preliminary inquiry judge or another judge of the Ontario Court at the earliest reasonable opportunity.

M. Dambrot J.