COURT FILE NO.: 10-1900
DATE: 2012-11-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Kevin Phillips and Matthew Humphreys, Assistant Crown Attorneys, for the Applicant
Applicant
- and -
Rachelle Denis
Matthew C. Webber, Kimberly D. Hyslop
Webber Schroeder Goldstein Abergel, for the Respondent
Respondent
HEARD: September 6, 2012,
at Ottawa, Ontario
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 539 OF THE CRIMINAL CODE
Madam Justice B. R. Warkentin
Reasons For Certiorari
[1] The Respondent, Rachelle Denis was charged with the first degree murder of Mr. El-Kassis following an incident on July 2, 2010. After a six day preliminary hearing before Mr. Justice Hugh L. Fraser of the Ontario Court of Justice, she was committed to stand trial for second degree murder.
[2] The Applicant Crown seeks to overturn the Respondent's discharge on first degree murder on grounds that the preliminary inquiry judge committed jurisdictional error by weighing competing inferences, by accepting some of the competing inferences least favourable to the Crown and 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 Respondent on first degree murder.
Background
[4] The victim, Mr. El-Kassis and his wife, Cecile El-Kassis had been married since June 8, 1975. They owned and operated a chip stand in Richmond, Ontario. They had four daughters.
[5] The Respondent's mother also lived in Richmond and the evidence at the preliminary inquiry showed that the Respondent visited her mother on a regular basis. There was no evidence that the Respondent intended to visit her mother on July 2, 2010, however she was located by the police at her mother's home after the incident that killed Mr. El-Kassis.
[6] The El-Kassis family and the Respondent's family were friends. The El-Kassis family had been helping the Respondent's mother who had recently lost her spouse as well as the Respondent herself with her newborn by providing her with milk, diapers, and other things. Mr. El-Kassis was the godfather of the newborn.
[7] Sometime in 2009, Mr. El-Kassis had an affair with the Respondent at a time when the Respondent was separated from her husband. They met regularly at the home of the Respondent's mother.
[8] Mr. El-Kassis then attempted to break off the affair but the Respondent refused to accept that the affair was over and threatened to tell Ms. El-Kassis. At the end of September 2009 Mr. El-Kassis told his wife about the affair and told her he felt trapped. Ms. El-Kassis chose to support her husband and to assist him with ending the relationship with the Respondent.
[9] After telling his wife about the affair, Mr. El-Kassis told the Respondent to stop calling him and to stop asking for his help. When the Respondent continued to contact Mr. El-Kassis in spite of having been asked to stop, Ms. El-Kassis confronted her and told her to stop calling and bothering them. The telephone calls continued and Ms. El-Kassis began keeping a record of the calls.
[10] In addition to making many unwanted telephone calls to the El-Kassis home, the Respondent also sent messages to Ms. El-Kassis and one of their daughters via Facebook. In October 2009, Mr. El-Kassis and Ms. El-Kassis retained a lawyer who sent the Respondent a letter telling her not to call them again. Instead of adhering to that request, the Respondent immediately called Mr. El-Kassis and Ms. El-Kassis and thanked them for the letter.
[11] The telephone calls by the Respondent to the El-Kassises began to escalate after she received the letter from the lawyer. The Respondent was calling both the chip stand and the home of the El-Kassis family. As an example of the numbers of calls that she made, on November 6, 2009, the Respondent called the family home 27 times. This was the most telephone calls recorded by Ms. El-Kassis in one day.
[12] After having received the 27 calls in one day, the El-Kassis family changed their home phone number and the telephone calls to the family home stopped for a number of months. However, the Respondent then began appearing at the family home and at the chip wagon. On one occasion, on November 14, 2009, the Respondent entered the El-Kassis home without having been invited. After that incident the El-Kassis family began to keep their doors locked at all times.
[13] Ms. El-Kassis testified at the preliminary inquiry that she and the rest of the family were becoming very afraid for their safety. The Respondent was observed in her parked truck outside the El-Kassis home and she attended at the chip wagon.
[14] By the end of November, the El-Kassises decided to involve the police and in early December attended in court to attempt to obtain a peace bond against the Respondent. The Respondent did not appear.
[15] The police advised Ms. El-Kassis to hang up and not speak to the Respondent when she called. The chip stand was closed for the winter from December 23, 2009 through February 20, 2010 and during this period there were no calls or visits from the Respondent.
[16] By the end of March 2010 the Respondent had resumed calling every day at least 10 times each day. This continued until the end of June 2010. At the preliminary inquiry, Ms. El-Kassis testified that she and Mr. El-Kassis were scared and nervous. They felt helpless and did not know what to do next to get the Respondent to stop harassing them. She also testified that Mr. El-Kassis was constantly nervous and scared for the family; he was not sleeping well and was worried about what the Respondent would do next. Mr. El-Kassis did not want to have the Respondent arrested because of her young children.
[17] On July 2, 2010, Mr. El-Kassis drove to the Richmond Shopping Plaza, which was described as the centre of Richmond, being the only place to shop in Richmond. Mr. El-Kassis parked and was walking towards a store in the plaza when the Respondent drove into the plaza parking lot in her Jeep Cherokee.
[18] Mr. Houle, a witness at the preliminary inquiry, testified that he was present in the parking lot that day as a shopper and first observed a Jeep driving slowly in the parking lot. He did not pay any further attention until he heard a vehicle accelerate and then saw the Jeep drive in a straight line through the parking lot directly at Mr. El-Kassis. The Jeep struck Mr. El-Kassis, while also driving into a brick wall.
[19] Mr. Houle testified that he believed the Jeep reached a speed of about 100 kilometers per hour and did not slow down or brake before hitting first Mr. El-Kassis and then the brick wall. At the time he was struck, Mr. El-Kassis was turned away, so was struck from behind.
[20] It was Mr. Houle's evidence that at first the Jeep was driving very slowly in a fashion he described as normally, in the parking lot and the next minute it was racing at a man and running him over.
Issues
[21] There was no issue at the preliminary hearing that there was at least some evidence of the requisite components of "murder" in this case. The defence, for the purposes of the preliminary inquiry, admitted there was sufficient evidence to commit the Respondent for second degree murder. There was also no dispute, again for the purposes of the preliminary inquiry, that the conduct of the Respondent in her ongoing telephone calls to the El-Kassis' and her attendance at their home and chip stand was criminal harassment as defined in s. 264 of the Criminal Code.
[22] The issue for the preliminary inquiry judge was whether the evidence of the Jeep in the parking lot of the Richmond Plaza when it was used to kill Mr. El-Kassis, was capable of supporting a first degree murder charge under section 231(6) of the Criminal Code. It was the Crown's position that the death of Mr. El-Kassis was caused while the Respondent was committing or attempting to commit criminal harassment pursuant to section 264 of the Criminal Code, and the Respondent intended to cause Mr. El-Kassis to fear for his safety.
[23] The Crown claimed that the preliminary inquiry judge discounted the evidence of criminal harassment or attempted criminal harassment and by doing so he impermissibly weighed it and engage in choosing between the competing inferences that could be drawn from that evidence.
[24] The Crown contended that there was at least some evidence that the Respondent was criminally harassing Mr. El-Kassis in the lead up to his murder as she had done numerous times in the past.
[25] In particular, the Crown argued that the preliminary inquiry judge committed jurisdictional error when:
a) He found the Respondent was a resident of the Richmond area and therefore had a legitimate or ordinary reason to be in Richmond the day of the murder. It was the Crown's position that there was no evidence before the preliminary inquiry judge to allow him to make that finding.
b) He failed to consider totality of evidence, in particular the evidence from deceased prior to his death, in his statements to the police, that the Respondent had been actively following him for a period of one or two months prior to his murder. The preliminary inquiry judge's failure to consider this evidence by failing to include it in the summary of the facts he was relying on was a jurisdictional error that had great bearing on his characterization of the relevance of her presence at the mall; and
c) He mischaracterized the evidence of the witness to the murder, a Mr. Evan Houle, when he failed to consider it in its broad contextual framework and drew inferences on that evidence that was not before him or available to him.
Section 231(6) – First Degree Murder While Committing Criminal Harassment
[26] Section 231(6) of the Criminal Code permits an accused to be committed to trial on first degree murder notwithstanding the absence of planning and deliberation if the Crown establishes that the underlying offence of criminal harassment contrary to section 264 of the Criminal Code existed at the time of the commission of the murder and that the accused intended to cause the person murdered to fear for his safety or the safety of anyone known to him.
[27] Section 231(6) of the Criminal Code reads as follows:
(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the person committing that offence intends to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.
[28] For the commission of a murder while engaging in the offence of criminal harassment to constitute first degree murder, an accused must have the intent to instil fear in the victim when committing the criminal harassment. Equally, it is essential that a judge or jury be able to conclude that the death of the victim was caused "while the accused was committing or attempting to commit the offence of criminal harassment."[^1]
Conduct at the time of the murder
[29] It was the Crown's position that it had established the elements required for committal on first degree murder once the Crown established evidence which could reasonably support the elements of criminal harassment as set out by the Ontario Court of Appeal in the case of R. v. Kosikar[^2] that:
a) the Respondent engaged in the conduct set out in section 264(2)(a), (b), (c), or (d) of the Code;
b) Mr. El-Kassis was harassed;
c) the Respondent engaged in such conduct and knew that Mr. El-Kassis was harassed or was reckless or wilfully blind as to whether Mr. El-Kassis was harassed;
d) The Respondent's conduct caused Mr. El-Kassis to fear for his safety or the safety of anyone known to him; and
e) Mr. El-Kassis' fear was, in all the circumstances, reasonable.
[30] Both the Crown and counsel for the Respondent agreed that to satisfy the criteria for first degree murder, there must be two discrete criminal acts forming part of one transaction, namely that there was a killing that amounts to murder and a criminal harassment that was unlawful.[^3]
[31] The murder must take place while the accused is committing or attempting to commit the offence of criminal harassment. The Supreme Court of Canada noted in the case of R. v. Pritchard[^4] that the necessary inter-relationship between the murder and the predicate offence, in this case criminal harassment, must be closely linked both temporally and causally:
…it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in murder. The murder represents an exploitation of the position of power created by the underlying crime and makes the entire course of conduct a "single transaction". This approach, in my view, best gives effect to the philosophy underlying s. [231(5)]. (para 33)
Scope of Review
[32] 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.
[33] 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."[^5]
[34] 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.[^6]
[35] 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.[^7]
[36] 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.
[37] 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.[^8]
[38] 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.[^9]
[39] There are two ways in which a preliminary inquiry judge, when drawing inferences, might erroneously engage in impermissible speculation:[^10]
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
[40] The preliminary inquiry judge reserved his decision before delivering a thorough judgment in which he found that there was insufficient evidence of criminal harassment at the time of the murder and therefore the requirements of s. 231(6) were not satisfied and as such he committed the Respondent on second degree murder rather than first degree murder. He correctly set out the legal principles he was required to apply when discharging the Respondent on first degree murder in pages 33 through 37 of his reasons.
Weighing of Competing Inferences
[41] In arguing that the preliminary inquiry judge erred by impermissibly weighing competing inferences, the Crown pointed to the judge's findings that the Respondent was a resident of Richmond; that a reasonable jury would have to consider the Richmond Plaza as being the main shopping area for residents of Richmond and that the businesses in the Richmond Plaza would have been open at 9:30 am. It was the Crown's position that by making these findings when the Crown had presented an alternate theory; that a jury could infer that the Respondent was present at the Plaza because she had followed Mr. El-Kassis there and manipulated the fittings of her vehicle in order to creep in his direction, the preliminary inquiry judge committed jurisdictional error.
[42] It was the position of the Crown that the jurisdictional error was made because the preliminary inquiry judge chose among competing or alternative reasonable inferences. It was also the Crown's position that the inference urged by the Crown was a permissible one based on all of the evidence based upon the Respondent's established pattern of criminal harassment and not speculation or conjecture.
[43] By weighing those competing inferences, the Crown argued that the preliminary hearing judge usurped the role of the trier of fact.
[44] It was the position of counsel for the Respondent that the preliminary inquiry judge was required to consider the available inferences of both the Crown and the defence to determine if the evidence was sufficient for a jury to reach the conclusion sought by the Crown. The preliminary inquiry judge was entitled to conduct a limited weighing of the evidence, which consisted of circumstantial evidence regarding the Respondent's reason for being at the Richmond Plaza that morning and to draw the conclusion that he did.
[45] It was the position of counsel for the Respondent that after conducting this limited weighing of the evidence, the preliminary inquiry judge determined that there was no logical inference to be made for the Crown's proposition that the Respondent had deliberately manipulating the fittings of her vehicle in order to creep through the parking lot as evidence of criminal harassment.
[46] Counsel for the Respondent 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 upon the totality of the evidence.
[47] Finally, counsel for the Respondent noted 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 on first degree murder, he was required to do so with respect to the circumstantial evidence.
Failing to Consider the Whole of the Evidence
[48] The preliminary inquiry judge next dealt with whether criminal harassment could be found to have occurred during the time that the Respondent was in the parking lot of the plaza prior to accelerating and driving into Mr. El-Kassis. Both the Crown and defence agreed that for s. 231(6) to apply there had to be the criminal harassment of Mr. El-Kassis in the parking lot of the Plaza when the murder was committed.
[49] The Crown alleged that the preliminary inquiry judge failed to consider the whole of the evidence regarding this point and as such committed jurisdictional error.
[50] It was the position of the Crown that based on the totality of the evidence, a strong inference was available that the Respondent was not in the Plaza parking lot by coincidence that morning or for some legitimate purpose, but was there as part of the continuing pattern of criminal harassment she had been perpetrating against Mr. El-Kassis in the months, weeks, and days leading up to his death.
[51] It was the Crown's position that the preliminary inquiry judge was obliged to consider the cumulative effect of the evidence and that it was improper to isolate a particular piece of evidence without considering the context of the totality of the evidence.[^11] The Crown argued that there was an inference to be drawn when examining the actions of the Respondent the morning of the murder against the background of her prolonged and unrelenting campaign of criminal harassment that she was continuing that same criminal harassment behaviour when she slowly drove through the parking lot of the shopping area before accelerating.
[52] Counsel for the Respondent disagreed with the Crown and argued that the preliminary inquiry judge understood his obligation to consider the whole of the evidence and did so. Counsel for the Respondent noted that the preliminary inquiry judge had in fact found that:
It bears repeating that the respondent has conceded that a properly instructed jury could find that there was a history of criminal harassment on the part of Ms. Denis towards Mr. El-Kassis. However, that same properly instructed jury would also have to find that the death of the victim occurred while the accused was committing or attempting to commit a criminal harassment offence and that she intended to cause the victim to fear for his safety. (page 51 of his reasons)
[53] The preliminary inquiry judge then concluded that "there is no evidence in this case of the requisite two distinct acts which are required to form part of one transaction" (page 52). It was the Respondent's position that the preliminary inquiry judge clearly found, after considering the whole of the evidence relevant to the issues before him, that there was simply insufficient evidence find the essential elements required by s. 231(6) in order to commit the Respondent on first degree murder.
Conclusion
[54] The preliminary inquiry judge's reasons demonstrate that he was well aware of the Crown's position regarding the inferences sought to be adduced as well as the evidence that supported those inferences. The preliminary inquiry judge disagreed that a reasonable jury, properly instructed could draw the inferences sought by the Crown. He made this finding after confirming that his role was limited to conducting of a limited weighing of the various inferences. (pages 50 and 51 of his reasons).
[55] Based upon this approach, I accept that the preliminary inquiry judge did not arrive at his decision by improperly weighing competing inferences.
[56] I accept the position of counsel for the Respondent that the preliminary inquiry judge considered all of the evidence and made no jurisdictional error when he determined that the evidentiary record before the court was not capable of establishing that the Respondent committed or attempted to commit an act of criminal harassment at the time of the murder. He found that there was no evidence of the requisite two distinct acts required to form part of one transaction and as such the elements of first degree murder while committing criminal harassment did not exist.
[57] 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.
[58] In summary, I do not accept that the preliminary inquiry judge arrived at his decision by weighing competing inferences or that he failed to consider the whole of the evidence, nor do I accept that he usurped the role of the trier of fact.
[59] The Crown's Application is therefore dismissed.
Madam Justice B. R. Warkentin
Released: November 21, 2012
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 539 OF THE CRIMINAL CODE
COURT FILE NO.: 10-1900
DATE: 2012-11-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Applicant
- and –
Rachelle Denis
Respondent
REASONS FOR CERTIORARI
Warkentin J.
Released: November 21, 2012
[^1]: R. v. Zasidko, [2003] O.J. No. 1942 (Ct. J.) at para. 213.
[^2]: R. v. Kosikar, 1999 CanLII 3775 (ON CA), [1999] OJ No 3569 at para 19 (CA)
[^3]: R. v. Zasidko, supra at para. 217.
[^4]: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195.
[^5]: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 at para 23
[^6]: 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.
[^7]: R v. Arcuri supra at para 23
[^8]: R v. Arcuri supra at para 30
[^9]: R v. Arcuri supra at paras 29-30
[^10]: R. v. Dadshani, [2006] O.J. No. 1857 at para 11 (Out. S.C.J.)
[^11]: R v Coke, [1996] OJ No 808 at para 9 (SCJ), Hill J.