Court File and Parties
CITATION: R. v. Badakhshan, 2013 ONSC 3047
COURT FILE NO.: 12-70000207-MO
DATE: 20130528
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Farshad Badakhshan
BEFORE: M.A. Code J.
COUNSEL: Jason Gorda, for the Crown/Respondent Paul Burstein, for the Applicant
HEARD: May 21, 2013
ENDORSEMENT
[1] The Applicant Farshad Badakhshan [hereinafter, Badakhshan] was committed for trial by Rutherford J. on October 9, 2012 on a charge of first degree murder. The police had charged Badakhshan with second degree murder and there was no dispute that he should be committed for trial on that offence. The Crown relied on the modern committal powers found in s. 548(1)(a) of the Criminal Code, statutorily reversing the decision in R. v. Chabot (1980), 55 C.C.C. (2d) 385 (S.C.C.), in order to seek and obtain a committal for the greater offence of first degree murder. This issue was vigorously contested at the preliminary inquiry.
[2] Badakhshan now seeks relief, by way of certiorari, quashing his committal for the greater offence of first degree murder. He advances two arguments, as follows: first, he submits that there was an insufficient basis in the evidence to reasonably infer that the murder was “planned and deliberate” within the meaning of s. 231(2); second, he submits that Rutherford J. failed to consider “the whole of the evidence” when deciding to commit for the greater offence of first degree murder.
[3] The first of the above two grounds for seeking certiorari to quash a committal has been well established in the case law, ever since the Supreme Court of Canada’s decisions in R. v. Skogman (1984), 13 C.C.C. (3d) 161 (S.C.C.) and R. v. Dubois (1986), 25 C.C.C. (3d) 221 (S.C.C.). The second alleged basis is less clear. The statutory duty to base a decision at a preliminary inquiry on “the whole of the evidence” is found in s. 548(1)(b) and it relates to the power to “discharge the accused”. The statutory power “to put the accused on trial”, found in s. 548(1)(a), does not contain similar language and refers, instead, to “sufficient evidence” as the basis for this power. It has been held that a failure to consider “the whole of the evidence” is a jurisdictional error, reviewable by way of certiorari, when the preliminary inquiry judge has discharged the accused pursuant to s. 548(1)(b). It has not yet been decided whether a similar jurisdictional error can arise, when committing an accused for trial on the basis of “sufficient evidence” pursuant to s. 548(1)(a). See: R. v. Deschamplain (2004), 2004 SCC 76, 196 C.C.C. (3d) 1 (S.C.C.); R. v. Sazant (2004), 2004 SCC 77, 193 C.C.C. (3d) 446 (S.C.C.).
[4] Given that the first argument is well established in law, and it is the more fundamental of the two arguments, I will address it first.
[5] There is no dispute that Rutherford J. instructed herself impeccably as to the governing legal principles. The evidence of “planning and deliberation” was entirely circumstantial. Accordingly, Rutherford J. set out the “limited weighing” approach to testing the sufficiency of circumstantial inferences, for purposes of committal, as directed by the Court in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.). She asked whether the evidence was “reasonably capable of supporting the inferences that the Crown asks the jury to draw”, warned against choosing “between competing inferences”, and noted that a reasonable inference “need not be an easy inference”. See: R. v. Sazant, supra at para. 18; R. v. Katwaru (2001), 153 C.C.C. (3d) 433 at paras. 40-41 (Ont. C.A.); R. v. Munoz (2006), 205 C.C.C. (3d) 70 at para. 21 (Ont. S.C.J.).
[6] In terms of the meaning in law of “planned and deliberate”, Rutherford J. quoted Chief Justice Gale’s classic instruction from R. v. Widdifield (1961), 6 C.L.Q. 152 (Ont. H.C.J.), to the effect that “planned” means “a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed”. Rutherford J. also quoted the well known principle, set out by Chief Justice Culliton in R. v. Smith (1979), 51 C.C.C. (2d) 381 (Sask. C.A.), that the planning must “occur after the intent to murder has been formed” and cannot refer to a murder that is “committed on a sudden impulse and without prior consideration”. See also: R. v. Reynolds (1978), 44 C.C.C. (2d) 129 (Ont. C.A.); R. v. Ruptash, (1982), 1982 ABCA 165, 68 C.C.C. (2d) 182 (Alta. C.A.).
[7] After instructing herself on the law, Rutherford J. set out the evidence which, in her opinion, could reasonably support an inference of “planning and deliberation”. She had previously summarized all the evidence at the preliminary inquiry, in some detail, at pp. 7-13 of the Transcript of Reasons. As I read her entire reasons, there were six broad areas of relevant evidence that she considered on the issue of “planning and deliberation”, which I would summarize as follows:
Badakhshan and the deceased woman had been involved “in an intimate relationship that can be categorized as dysfunctional and tumultuous” and in which he “behaved in a possessive and controlling manner”. There had been talk about ending the relationship and about one of them moving out of the rooming house where they were both living in separate rooms. Badakhshan had been insulting and verbally abusive towards the deceased on occasion but there had been no prior violence;
On the morning of July 2, 2010, when the murder occurred, the deceased woman came to Badakhshan’s basement room in their rooming house. There was “no evidence indicating why and when” she came to his room. She lived in one of the ground floor rooms, immediately above Badakhshan’s room, and the evidence was that they visited each other’s rooms frequently;
Once inside Badakhshan’s basement room, “he caused her throat to be cut and her body to be burned”. The cause of death was “an incised wound to her neck and burns to her body”. The cut to her neck was “from ear to ear and it was twenty-five centimeters in length”. In addition, there were “several other superficial incised wounds to other parts of her upper body”, including one defensive wound to her left thumb. The burns covered 60% to 70% of the deceased woman’s body;
In addition to causing the above injuries to the deceased, Badakhshan set “four separate fires”, three of which were inside his room and one of which was “outside of the door of the unit”. It could not be determined “what came first, the fire or the wound” to the neck. However, the deceased was undoubtedly still alive when Badakhshan set the fires because her screams were heard coming from the basement room, while it burned. In addition, both Badakhshan and the deceased emerged at some point from the fires in the basement and came upstairs to the shared kitchen on the main floor. Both of them were on fire but they were still alive. As between the four fires set by Badakhshan, the evidence of the Fire Marshall was clear that it was “the fire outside the door [that] was set first”;
Badakhshan used some kind of accelerant to set some of the fires because “traces of accelerant were located at the three fire areas inside” the room. Rutherford J. misstated the evidence on this point. In fact, the traces of accelerant were found at two locations. The first was in a melted blue plastic container at one of the fire locations inside the room. The second was on a pair of jeans that were partially burnt. It could be inferred that the jeans belonged to Badakhshan. The accelerant was described as a “light petroleum distillate”. Rutherford J. reasoned that “the nature of the fires, the location of the fires, and the significant burns to” both Badakhshan and the deceased could reasonably infer that the quantity of accelerant was “more … than would typically be found in a small Bic lighter” and that this quantity of accelerant “would have been obtained ahead of time”. Badakhshan was a smoker and a small Bic lighter was found in his room. Rutherford J. went on to acknowledge that there was no evidence as to when or where or whether “Badakshan bought the accelerant”, and whether it was “an unusual household product”, and she held that these factors would affect the weight to be given to any inference concerning the accelerant;
Finally, a smoke alarm detector that was wired into the house electrical system was in proper working order. It eventually went off and the other occupants of the house emerged from their rooms and escaped the fire. There was also a smoke alarm detector inside Badakhshan’s room but it was operated by a battery and there was no battery in this smoke detector. According to Rutherford J.’s summary of the Fire Marshall’s evidence, he “testified that the fire alarm in Mr. Badakhshan’s unit was disabled, that is, the battery had been removed”. Rutherford J. reasoned that an available inference from this item of evidence was that Badakhshan “did not only [not?] want his murderous acts to be discovered but wanted them to be fulfilled”. She acknowledged, however, that there was “nothing to suggest Mr. Badakhshan’s fire alarm was ever actually armed” with a battery and that this would affect the weight to be given to any inference relating to the smoke detector.
[8] Mr. Burstein submits, on behalf of the Applicant, that the above body of evidence is incapable of supporting a reasonable inference of “planning and deliberation” and that Rutherford J. engaged in impermissible speculation and conjecture when concluding that there was “sufficient evidence”. Mr. Burstein concedes that, if the first fire that was set outside the door to Badakhshan’s room preceded the knife attack on the deceased inside the room, then there would be compelling evidence of “planning and deliberation”. However, he submits that Rutherford J. was correct when she concluded that it could not be determined whether the fire or the knife attack came first.
[9] Even taking the view of the evidence that is most favourable to the defence, namely, that the knife attack inside the room preceded the setting of the first fire, which was set outside the door to the room, I am still of the view that Rutherford J. did not commit jurisdictional error in finding sufficient evidence of “planning and deliberation”. The victim of the knife attack was still alive when Badakhshan went about setting four separate fires with some use of an accelerant. The first fire, set outside the door to the room, could be inferred to be a means of preventing or hindering escape. In addition, the setting of the fires was eventually to somehow cause both Badakhshan and the deceased to be set on fire, contributing to the cause of her death and causing severe injuries to Badakhshan. Mr. Burstein concedes that there is evidence to infer that Badakhshan was engaged in a suicide attempt. There was some evidence that he suffered from a mental illness, he did not try to extinguish the flames to his own body, he did not cry out in pain and he did not seek help, and he remained inside the burning house.
[10] In all the above circumstances, in my view, it is a case of competing inferences. One reasonable potential inference is that Badakhshan stabbed the deceased in a spontaneous and impulsive act and then tried to commit suicide by arson, without thinking or planning that the fire would also contribute to the victim’s death. An alternative reasonable potential inference is that Badakhshan planned a joint murder and suicide and then acted when the opportunity arose. The evidence of “planning and deliberation” is not strong, in my view, and some reasonable triers of fact might not draw the latter inference beyond reasonable doubt, but that is not the test at this stage.
[11] I am satisfied that there was some evidence of “planning and deliberation” and that Rutherford J. did not commit the Skogman and Dubois jurisdictional error of committing “in the absence of evidence on an essential ingredient in a charge”.
[12] Mr. Burstein’s alternative submission is that Rutherford J. committed the Sazant and Deschamplain jurisdictional error as she failed to consider “the whole of the evidence”. In oral argument, he referred to four aspects of the evidence which, he submits, Rutherford J. either failed to consider or misstated, as follows:
the evidence that Badakhshan was mentally ill and was attempting suicide, which could explain the arson in a manner that is unrelated to murdering the deceased;
the evidence, or lack of evidence, as to why the deceased came downstairs to Badakhshan’s room on the morning in question, which negates or weakens any inference of “planning and deliberating” on a murder and arson that morning;
the over-stating or misstating of the evidence relating to the use of an accelerant, as already set out above, leading Rutherford J. to attach undue weight to this piece of evidence;
the over-stating or misstating of the evidence relating to the “disabled” smoke detector, as already set out above, leading Rutherford J. to attach undue weight to this piece of evidence.
[13] Mr. Burstein conceded that his argument concerning Rutherford J.’s analysis of the above four areas of evidence, adduced at a preliminary inquiry, was no different than arguing “misapprehension of evidence” as a ground of appeal against conviction. See: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at 218 and 221 (Ont. C.A.); R. v. Lohrer (2004), 2004 SCC 80, 193 C.C.C. (3d) 1 at para. 2 (S.C.C.). He submitted that Rutherford J. either failed to consider evidence, made a mistake as to the substance of evidence, or failed to give proper effect to evidence, in the above four areas, and that these misapprehensions of evidence played “an essential part in the reasoning process resulting in” committal, as explained in Morrissey and Lohrer in the context of a conviction appeal. If the alleged misapprehension was not “essential” to the committal decision, in the sense that there was “sufficient evidence” in any event, Mr. Burstein concedes that certiorari could be denied, given that it is a discretionary remedy. See: R. v. Papadopoulos (2005), 201 C.C.C. (3d) 363 (Ont. C.A.).
[14] I have serious doubts as to whether a failure to consider “the whole of the evidence”, in the above sense, is a jurisdictional error that can be raised on certiorari when seeking to quash a committal. It has long been settled that error of law on the face of the record is not a jurisdictional error, when seeking to quash a committal. See: R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 at para. 19 (S.C.C.); R. v. Dubois, supra at p. 224; R. v. Skogman, supra at p. 167. It would be logically inconsistent to hold that legal errors are within the jurisdiction of the preliminary inquiry judge, when deciding committal, but that factual errors about the evidence or misapprehensions of evidence are errors that exceed the preliminary inquiry judge’s jurisdiction.
[15] Mr. Burstein’s argument on this point rests on the proposition that Sazant and Deschamplain have held that the Crown can raise a failure to consider “the whole of the evidence”, when seeking certiorari to quash a discharge, and so the defence should also be allowed to raise the same ground when seeking certiorari to quash a committal. I doubt that there is a parity of reasoning between these two situations. As already noted, the statutory terms used in s. 548(1)(a) and s. 548(1)(b) are different. Furthermore, the reasoning of the majority in R. v. Deschamplain, supra at paras 1, 17-18 and 35, was repeatedly limited to “decisions on the discharge of an accused”, and was based on the statutory language used in s. 548 (1)(b). For example, Major J. stated:
The respondent questions why the failure of a preliminary hearing judge to consider evidence tendered by the Crown amounts to jurisdictional error, but the erroneous exclusion of evidence at the preliminary hearing does not. The answer is not elusive. The preliminary inquiry judge has jurisdiction to conduct the inquiry according to the rules of evidence. Any error with respect to the application of those rules that does not rise to the level of a denial of natural justice (which also goes to jurisdiction: see Dubois, supra, at p. 377; Forsythe, supra, at p. 272) constitutes an error of law, not a jurisdictional error. Errors of law are not reviewable by way of certiorari.
Section 548(1)(b) requires the preliminary inquiry judge to consider “the whole of the evidence” that “has been taken” during the preliminary inquiry. The primary purpose of a preliminary inquiry is to “ascertain whether there is sufficient evidence to warrant committing the accused to trial”: R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 at para. 20 (S.C.C.). It follows that Parliament never intended to allow decisions on the discharge of an accused to be made without full regard to all of the evidence. In my view, it is jurisdictional error for a preliminary inquiry judge to fail to consider the “whole of the evidence” as required under s. 548(1)(b), and the Ontario Court of Appeal erred in concluding otherwise. [Emphasis added].
[16] Finally, the suggestion that the same jurisdictional errors should be available to both the Crown and the defence, under either s. 548(1)(a) or s. 548(1)(b), is not borne out by the reasoning of the majority in R. v. Deschamplain, supra at paras. 36-8, where Major J. stated the following:
Fish J. [in dissent in Deschamplain] concludes at para. 82 that if the preliminary inquiry judge erred at all, “her error concerned the sufficiency of the evidence and was not subject to review on certiorari”. He postulates at para. 63:
And it is well established that an error as to the sufficiency of the evidence cannot properly be characterized as “jurisdictional”, except where it results in a committal to trial in the absence of some evidence capable of supporting a conviction …
He then quotes McLachlin C.J.C. at paras. 28-29 of Russell, supra. In that passage, McLachlin C.J.C. clarified that the principles that govern jurisdictional errors are the same, regardless of whether such an error is raised by the Crown or by the accused. However, the reasons went on to state that practically speaking, the Crown and the accused would face disparate effects of errors as to the essential elements of a crime. [Emphasis in original]. She wrote (at para. 29):
While it is true that the effect of this principle is that errors as to the essential elements of the crime will, as a general rule, be reviewable when challenged by the accused but not when challenged by the Crown, this disparity reflects the balance of harms … [Emphasis in original.]
As discussed at para. 23 above, when it is the accused who raises a jurisdictional error, he or she will succeed if it can be shown that there was no evidence as to some essential element of the crime. In referring to disparate effects faced by the Crown and the accused, I read McLachlin C.JC. to be referring to the fact that, on the other hand, the Crown cannot demonstrate a jurisdictional error merely by showing that there was some evidence on each essential element of the crime. This is because it would be improper for the reviewing court to intervene merely because it would have reached a different conclusion from the preliminary inquiry judge as to the sufficiency of the evidence. However, a decision as to the sufficiency of evidence is beyond review by certiorari only when it was made by a preliminary inquiry judge who was acting within his or her jurisdiction, pursuant to the mandatory provisions of s. 548.
Fish J. would dismiss the appeal on the basis that the preliminary inquiry judge made a determination as to the sufficiency of the evidence that was within her jurisdiction. However, under s. 548(1)(b), a preliminary inquiry judge must consider “the whole of the evidence” in order to determine whether “no sufficient case is made out to put the accused on trial”. In this case, the preliminary inquiry judge did not consider “the whole of the evidence” as mandated by s. 548(1)(b), and such an error is jurisdictional. [Emphasis added].
[17] It makes sense that a discharge, where the preliminary inquiry judge has overlooked a critical piece of evidence that would justify a committal, amounts to jurisdictional error as the judge has failed to carry out the statutory mandate set out in s. 548(1)(b). It has long been held that “jurisdiction will be lost by a Magistrate who fails to observe a mandatory provision of the Criminal Code”. See: R. v. Forsythe (1980), 53 C.C.C. (2d) 225 at 229 (S.C.C.). The same cannot be said about a preliminary inquiry judge who overlooks or misconceives a piece of evidence but then commits the accused for trial. This latter judge will still have carried out the statutory mandate set out in s. 548(1)(a), if the evidence that was considered amounts to “sufficient evidence” on all essential elements, as explained in Skogman and Dubois. This latter issue can always be reviewed by the accused by way of certiorari, where there is a committal for trial, regardless of any misapprehensions of evidence. That is what I have done, when considering Mr. Burstein’s first and more fundamental ground for seeking certiorari. In other words, misapprehensions of individual items of evidence are irrelevant, at a preliminary inquiry, if there is “sufficient evidence” in any event.
[18] For all the above reasons, I am not satisfied that a failure to consider “the whole of the evidence” can be raised as a jurisdictional error when seeking to quash a committal for trial made pursuant to s. 548(1)(a).
[19] In the event that I am wrong in my reading of Sazant and Deschamplain, I am not satisfied that Rutherford J. did fail to consider “the whole of the evidence”, or that she misapprehended evidence in the Morrissey and Lohrer sense. My analysis of the four items of evidence relied on by Mr. Burstein, and their impact on Rutherford J.’s reasoning, is as follows:
As to the evidence that Badakhshan may have been mentally ill and was trying to commit suicide, it is true that Rutherford J. did not refer to this evidence when setting out her reasoning on the issue of “planning and deliberation”. However, that evidence cuts both ways, as I have tried to demonstrate in my own reasoning, set out above. It could support an inference of a “planned and deliberate” murder and suicide attempt or it could support an inference of a spontaneous killing followed by a spontaneous suicide attempt. Had Rutherford J. considered this piece of evidence, I am not persuaded that it would have made any difference;
As to the evidence, or lack of evidence, concerning how the deceased came to be in Badakhshan’s room, Rutherford J. did refer to this aspect of the evidence. In any event, it too is evidence that cuts both ways. Badakhshan would have known that the deceased came by his room from time to time, given their prior relationship and the proximity of their two rooms. It is a piece of evidence that is just as consistent with “planning and deliberation” as it is with a lack of “planning and deliberation”;
Finally, the last two items of evidence were arguably somewhat misstated or over-stated by Rutherford J., concerning the quantity of accelerant and the “disabling” of the smoke detector in Badakhshan’s room. However, Rutherford J. went on to expressly acknowledge the weaknesses in these two items of evidence, stressing the points relied on by the defence, and she stated that their weight would be for the trier of fact. In any circumstantial case, some of the individual items of evidence carry little weight, when viewed in isolation. It is their strength, when assessed together with all the other pieces of circumstantial evidence, that matters. This was true of the evidence of the smoke detector and the accelerant. See: R. v. Coté (1941), 71 C.C.C. 75 at 76 (S.C.C.); R. v. Stewart (1976), 31 C.C.C. (2d) 497 (S.C.C.); R. v. Lynch, Malone and King (1978), 40 C.C.C. (2d) 7 at 19 (Ont. C.A.); R. v. Bouvier (1984), 11 C.C.C. (3d) 257 at 264-6 (Ont. C.A.); R. v. Morin (1988), 44 C.C.C. (3d) 193 at 205-211 (S.C.C.).
[20] For all these reasons, I am not satisfied that Rutherford J. failed to consider “the whole of the evidence” or misapprehended the evidence.
[21] In spite of Mr. Burstein’s very able argument, Badakhshan’s Motion seeking relief in the nature of certiorari from his committal for first degree murder must be dismissed.
M.A. Code J.
Date: May 28, 2013