ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-1014
DATE: 2012/10/04
BETWEEN:
Her Majesty the Queen Applicant – and – Rosny César Respondent
Ronald Laliberté, for the Applicant
Howard Krongold, for the Respondent
HEARD: August 29, 2012 (L’Orignal)
REASONS FOR JUDGMENT
PARFETT J.
[ 1 ] The Crown requests a review of the committal decision of the preliminary inquiry justice on the basis that he exceeded his jurisdiction by choosing between competing inferences, failing to consider the whole of the evidence and failing to assess the Crown’s case at its highest.
[ 2 ] The Respondent, Rosny César (“César”), was charged with first degree murder as the result of a fatal stabbing outside a bar in Hawkesbury, which occurred on September 4, 2010. After a preliminary inquiry, the Respondent was discharged of first degree murder, but committed to stand trial on a charge of second degree murder.
[ 3 ] The only issue before the preliminary hearing justice was whether there was some evidence upon which a jury properly instructed could conclude that there had been planning and deliberation.
Background
[ 4 ] On September 4, 2010, César and his girlfriend, Marie Pierre Lalonde-Lafontaine (“Lalonde”) attended at a bar called the Déjà Vu in Hawkesbury. During the evening, there was a dispute between Lalonde and another woman that led in turn to a verbal altercation between César and the deceased – Danny Trineer (“Trineer”). As a result of this verbal altercation, César was asked by bouncers to leave. According to one of the bouncers, César stated on two occasions that he could not remain in the bar because he would do something he would regret. [1] César left the bar.
[ 5 ] Lalonde stayed behind at the bar and got into another altercation; this time with the bouncers. Trineer – an ex-employee of the bar – assisted the bouncers in removing Lalonde from the bar.
[ 6 ] After leaving the bar, César went home and retrieved a knife measuring 33 cm. He then returned to the bar with the knife concealed in his clothing. When César returned to the bar, Lalonde was standing in the parking lot with some bouncers, hysterical and out of control. César and the bouncers discussed Lalonde’s allegations that the bouncers had manhandled her and exposed her breasts and vagina. Approximately ten to fifteen minutes later, Trineer exited the bar and Lalonde immediately identified Trineer as having also participated in the altercation between her and the bouncers.
[ 7 ] At this point in time, one of the bouncers described César’s demeanour as undergoing a significant change. He appeared to have ‘big eyes’, ‘like a killer’s eyes’. [2] César rushed towards Trineer, removed the knife from his clothing and stabbed Trineer five times. Two of the stab wounds were superficial; three were directly into the chest area and were fatal.
Issues
[ 8 ] The only issue on this application is whether the preliminary inquiry justice exceeded his jurisdiction.
Standard of Review
[ 9 ] The scope of review on a certiorari application is limited to determining if there has been a jurisdictional error. The test has been described as follows:
It is well established that on a motion to quash a committal for trial the reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he could form an opinion that the evidence is sufficient to put the accused on trial. [3]
[ 10 ] The Court’s authority is a narrow one with the term jurisdiction being given its technical sense. Thus, a review on an application for certiorari
[d]oes not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review ‘only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction’. [4]
[ 11 ] It is important to note that there is a distinction to be drawn between the review of a decision on committal and the review of a decision on a discharge. With respect to the former, a jurisdictional error has occurred if the preliminary inquiry justice commits when there is no evidence on an essential element of the offence. [5] However, the analysis is somewhat different with respect to a discharge. In the latter case, as noted in R. v. Deschamplain ,
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. [6] [Citations omitted.]
Positions of Counsel
[ 12 ] Crown contends that the preliminary inquiry justice exceeded his jurisdiction in that evidence was presented from which a logical inference could be drawn that there was planning and deliberation in relation to the offence of murder. The Crown argues that the preliminary inquiry justice failed to consider that evidence or drew a competing inference from that evidence that was more favourable to the Respondent.
[ 13 ] Defence counsel argues that the preliminary inquiry justice explicitly rejected the inferences that the Crown sought to have drawn from the evidence and concluded that there was no evidence of planning and deliberation in relation to the offence of murder. Defence states that the preliminary inquiry justice may have drawn inferences that the Crown disagrees with, but he did not fail to consider relevant evidence or misapprehend the evidence. Therefore, he cannot be found to have exceeded his jurisdiction.
[ 14 ] As observed in R. v. Charles ,
Our jurisprudence clings to the jurisdictional/non-jurisdictional distinction on applications to quash decisions made at the conclusion of a preliminary inquiry.
As the reasons of the preliminary inquiry judge demonstrate, the distinction between a failure to consider relevant evidence in deciding what inference can reasonably be drawn (a jurisdictional error) and the erroneous determination that certain evidence is not relevant to whether a certain inference could be drawn (a non-jurisdictional error) can be very difficult to draw and sometimes seems to turn as much on semantics as on any principled analysis. [7]
[ 15 ] In this case, it is precisely this distinction that is at the heart of the debate. Crown says relevant evidence was not considered (a jurisdictional error) while Defence says the judge considered the relevant evidence, but rejected the inferences sought by the Crown (a non‑jurisdictional error).
[ 16 ] The Crown provided the case of R. v. Adam [8] as an example of a jurisdictional error whereby the preliminary inquiry justice exceeded his jurisdiction in finding that there was no evidence of planning and deliberation. The endorsement is brief, but it is clear that the Court of Appeal found that the preliminary inquiry justice failed to consider a significant piece of evidence. As noted earlier, that finding is consistent with a jurisdictional error.
[ 17 ] In the case at bar, the reasons for committal of the preliminary inquiry justice indicate incontrovertibly that he was conversant with all the relevant tests. Moreover, he thoroughly reviews the evidence that the Crown argued led to the logical conclusion that the Respondent planned to kill Trineer. [9]
[ 18 ] However, the preliminary inquiry justice then goes on to state,
I agree that there exists a possible inference that Mr. César initially arrived at the bar unarmed. I agree that there exists on the facts a possible inference that following the confrontation with Mr. Trineer, Mr. César left the bar, went to his house and came back to the bar armed with a knife unaware of the ejection of his girlfriend from the bar. There was an opportunity between leaving the bar and returning to that establishment to form the intent to kill and plan the killing, however, as the Crown conceded, opportunity is not evidence of a plan.
I agree that there exists a possible inference that he [César] exited his car armed with a 33cm knife he had concealed on his person. The Crown argues that there exists an additional possible inference that he did so with the intent to stab the victim in order to kill him or to inflict bodily harm that he knew was likely to cause his death. I disagree that this inference is available to the Crown... I conclude that Mr. César’s return to the bar armed with a knife can only reasonably and logically lead to an inference of an intent to cause bodily harm to or confront Mr. Trineer and not to an inference of intent to kill or to inflict bodily harm that he knew was likely to cause death. [10] [Emphasis added]
[ 19 ] Later in his reasons, the preliminary inquiry justice stated
When considered with all the available evidence and inferences, do these facts reasonably and logically allow for:
an inference of planning in the sense of a scheme conceived and carefully thought out, the nature and consequences of which have been considered and weighed, and;
do these facts reasonably and logically allow for an inference of deliberation in the sense of considered, not impulsive, slow in deciding, weighing the advantages and disadvantages of the intended action?
I have arrived at the conclusion that the lack of action towards one or more persons, who are in like circumstances to another does not reasonably and logically lead to an inference of planned action towards the other individual. The inference suggested by the Crown cannot, in my view, legitimately be drawn. To do so would be to speculate or make an educated guess. There is no evidence of or an inference available of planning.
I conclude that there is no evidence or inference available to the Crown that Mr. César had given any consideration to the murder of Mr. Trineer until he was pointed out by his girlfriend as one of her aggressors. [11]
[ 20 ] In my view, the preliminary inquiry justice was alive to all the relevant evidence and gave due consideration to the Crown’s view of that evidence. There is room for debate concerning the conclusions that the preliminary inquiry justice drew. However, it cannot be said that he either failed to consider relevant evidence or found that there was a reasonable inference that could have been drawn in favour of the Crown and did not draw it. Rather, he considered the inferences that the Crown wanted him to draw and explicitly rejected those inferences. In my view, no jurisdictional error was committed by the preliminary inquiry justice and consequently the application is dismissed.
Madam Justice Julianne A. Parfett
Released: October 4, 2012
COURT FILE NO.: 10-1014
DATE: 2012/10/04
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen Applicant – and – Rosny César Respondent
REASONS FOR JUDGMENT
Parfett J.
Released: October 4, 2012
[1] Transcript, vol. 2, p. 10, lines 17-20.
[2] Transcript, vol. 2, pp. 89, lines 20-25.
[3] R. v. Chambers (1985), 20 C.C.C.(3d) 440 at para. 11 (O.C.A.).
[4] R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 at para. 19.
[5] R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 at para. 23.
[6] Ibid., at para. 23.
[7] 2008 ONCA 237 at paras. 1-2. See also R. v. Iuliano, [2008] O.J. No. 850 (S.C.J.) at para. 21
[8] 2012 ONCA 582
[9] Transcript, Decision on Committal January 18, 2012 at pp. 10-14.
[10] Transcript, Decision on Committal January 18, 2012 at pp. 18-19.
[11] Transcript, Decision on Committal January 18, 2012 at pp. 20-21.