COURT FILE NO.: M 190/12
DATE: 20130723
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
KEVIN GEORGE PAYNE
Respondent
David Mitchell for the Crown
Carol Cahill for the Respondent
HEARD: February 11, 2013
THEN R.S.J.:
Overview
[1] The respondent was initially charged with attempt murder, aggravated assault and assault with a weapon. After the completion of the evidence at the preliminary hearing, pursuant to s. 548 of the Criminal Code, the Crown sought to add a charge of overcoming resistance to the commission of an offence (attempt murder) particularized as by choking contrary to s. 246 of the Criminal Code.
[2] The preliminary inquiry judge committed the respondent for trial on the charges of aggravated assault and assault with a weapon but discharged the respondent on the charge of attempt murder and as well the added charge of overcoming resistance to the commission of an offence (attempt murder).
[3] The applicant, Crown, submits that the preliminary inquiry committed jurisdictional error by failing to consider the whole of the evidence, by failing to draw reasonable inferences based on the evidence, in choosing between competing inferences, and, in not choosing the inferences most favourable to the Crown.
[4] Accordingly, the applicant seeks an order in the nature of certiorari with mandamus in aid quashing the order discharging the respondent and remitting the matter to the preliminary inquiry judge to commit the respondent to stand trial on the charges alleged.
THE ISSUE
[5] The broad issue is whether the preliminary inquiry judge committed jurisdictional error in discharging the respondent of the attempt murder charge of overcoming resistance to the offence of attempt murder by choking contrary to s. 246 of the Criminal Code.
[6] I am satisfied, based on my review of this record and the reasons of the preliminary inquiry judge as a whole, that the preliminary inquiry judge committed jurisdictional error by failing to consider the whole of the evidence, by failing to draw reasonable inferences based on the evidence, by choosing between competing inferences and by not choosing between competing inferences favourable to the Crown.
THE FACTS
[7] Most of the evidence found by the preliminary inquiry judge to be relevant to either his task of committal for trial or discharge is succinctly summarized in the ruling on committal as follows:
First of all, the analysis of the facts, in my view, and the limited weighing exercise does establish, as the Crown has suggested, that there was animus, that the Crown uses the term of the witness, Jacqueline Mark, that Mr. Payne was beyond rage. And the animus was specified in various words that were stated immediately prior to the ultimate stabbing.
Mr. Payne was alleging that Ms. Mark was treating him as her “bitch”. That she was making him feel that he wasn’t “good enough”. He kept saying to Ms. Mark many times, according to her that from this day forward things would be done “his way”. He stated “there’s going to be some change” and that “she was going to learn”. He was not “fucking around anymore”.
This yelling and raging again and again was accompanied by him ushering her into the kitchen where there was a sink full of cutlery. In doing so he was saying things such as “now you’ve just ended my life”. That you must – “you would pay”, referring to Ms. Mark and that “you”, referring to Ms. Mark, “would suffer for it”.
He both grabbed her phone when she tried to call for help, tried to strangle her and then while strangled her reached into the sink and pulled out the ultimate weapon. In doing so he made the knife available to himself by deliberately maneuvering Ms. Mark to a position by – with her back to the sink where he could reach into the sink and get the knife.
In my view, that is consistent with an attempt to injure, to wound, to cause bodily harm, and it was intentional that he was going to get that knife to do so. What he did with that knife is he, in both choking her and stabbing her, he stabbed her once in the abdomen, drew his arm back and did no more in terms of stabbing with the knife. She was very seriously and obviously injured. He offered no assistance.
And they made their way toward the bedroom at which time, Ms. Mark, now in some freedom from both the strangling and the physical control that he had over her body, backed her way to the window and managed, while he was watching her and continuing to express his rage, to open the window and to – as she described, with his look of amazement and bewilderment, make her exit out the window.
All of the language, in my view, and all of the behaviour by Mr. Payne, showed a person in extreme rage as stated, and in extreme retributive physical actions towards Ms. Mark.
She was a very careful witness. And although I cannot weigh credibility I do not disregard anything that she said in terms of giving the surrounding detail that is required for me to consider the circumstances of such a case.
However, it is, in my view, the yelling and the raging, the references to making her pay and suffering and the bewilderment when she actually took a step herself, which could have resulted in her death mainly backing out the window and escaping through the window and falling a number of stories and resulting further injuring herself, not just to her abdomen but to her legs.
I would point out that she testified – arrived in and out of court in a wheelchair and is seriously injured because of her fall, but all of that seemed to cause him some astonishment at the very end. And perhaps in the realization of the horror that he had caused her and a fear that he had engendered in her, which was such that she almost took her own life in order to escape.
[8] Some of the evidence the preliminary judge did not refer to was Ms. Mark’s testimony that the knife used by the respondent was a large unserrated carving knife approximately 10 inches in length. She saw him draw the knife back and stab her and then remove the blade. She immediately covered her wound with her hand and could feel her insides coming out. The respondent still had the knife in his hand after he stabbed her. After the stabbing she retreated to the bedroom and positioned herself on the window sill and unlocked the window with one hand. She believed she was going to die. The respondent started coming slowly towards her taking one or two steps. The knife was still in his hand and it was raised. She believed he was going to stab her again so she jumped out the window.
[9] After the incident Ms. Mark was in the hospital for 2 weeks. With respect to the abdominal injury from the stab wound, her small bowel and a portion of her stomach had eviscerated through a 10 cm. cut in her left anterior wall. It was conceded for the purposes of the preliminary inquiry that the injuries received by Ms. Mark from the stabbing were on their own life threatening.
ANALYSIS
[10] The task of the preliminary inquiry judge in determining whether to commit the accused for trial or to discharge the accused is set out in s. 548(1) of the Criminal Code, R.S.C., 1985, c. C-46 as follows:
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.
[11] In R. v. Coke, [1996] O.J. No. 808 (Gen. Div.), Hill J. at para. 9, offers some interpretive guidelines with respect to the task of the preliminary inquiry judge under s. 548(1) of the Criminal Code gleaned from the jurisprudence which I adopt:
(1) Credibility assessment and related factors affecting weight are not to be resolved short of trial. In effect, the court considers the prosecution case in its best light could the evidence if believed provide proof of the essential elements.
(2) Any reasonable interpretation or permissible inference from the evidence, properly admissible against the accused beyond conjecture or speculation, is to be resolved in favour of the prosecution. Some evidence, if only at the level of a scintilla of evidence, must however exist respecting the constituent elements.
(3) The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence.
[12] On this application both parties agree that the preliminary inquiry judge properly instructed himself with respect to the approach the preliminary inquiry judge must take in circumstances where all of the evidence on the essential elements of the offence is circumstantial. In his ruling, the preliminary inquiry judge stated the following:
Now, the parties are not very far apart on almost the entire framework for this discussion. The Crown, in her factum, sets out in some detail the existing case law, and I would suggest very accurately first of all the test for committal under s. 548(1) and secondly the limited weighing that must be done under Arcuri, 2001 SCC 54, [2001] 157 C.C.C. (3d) 21 at paragraph 23, a decision of the Supreme Court of Canada, Justice McLaughlin then chief justice speaking for the court. And I agree with the Crown’s statement of the law.
First of all the first point is that “the limited weighing that is provided for Arcuri arises where the Crown is seeking to rely on circumstantial evidence where there is an inferential gap between the evidence and the matter to be established. And this is not an issue whether or not that evidence is believable or credible simply whether there is evidence that can bridge that inferential gap.
Secondly, the Crown points out the judge does not ask whether she herself would conclude that the accused is guilty, nor does the judge draw factual inferences or assess credibility – previous point. The judge must simply ask whether the evidence, if believed, could reasonably support the interference of guilt.
The third point, as set out by Justice Major in R. v. Sazant where there is more than one inference that can be drawn from the evidence only the evidence that favours the Crown is to be considered.
And that focuses us on the limited jurisdiction in the preliminary inquiry.
And finally, the oft cited decision of Justice Casey Hill in Brampton in R. v. Coke, [1996] O.J. 1808 where Justice Hill essentially repeats the admonition of Justice Major in Sazant, but also points out that its required in this limited weighing that you must look at the context of the totality of the evidence.
[13] The pivotal issue in this case is whether the preliminary inquiry judge committed jurisdictional error by not considering all of the evidence in discharging the respondent. More particularly whether the judge considered all of the evidence relevant to the element of specific intent to kill which is conceded to be the mens rea requirement for attempt murder by virtue of R. v. Ancio (1984), 1984 CanLII 69 (SCC), 10 C.C.C. (3d) 385 (S.C.C.).
[14] In his ruling, the preliminary inquiry judge properly accepted the submission of respondent’s counsel that in order to warrant a committal on attempt murder, the Crown must adduce evidence that a properly instructed jury could, not must, conclude that the respondent had the specific intent to kill. Moreover, he purported to instruct himself that in considering the element of specific intent it was incumbent upon him to do so in the context of all of the evidence. In his ruling, he stated the following:
And again, referring back to the admonition of Justice Hill in Coke, on this particular point the specific intent to kill, Justice David Watt’s standard charge for jury instructions advises the judge and asks the judge to tell the jury that in evaluating the accused’s state of mind and whether there is an intent to kill someone they must look at all the evidence, both what was done, what was not done, what was said and what was not said.
[15] It is the submission of the Crown that while the judge may have been alive to the need to consider all of the evidence, he nevertheless failed to consider significant evidence relevant to the issue of specific intent in discharging the respondent on the charge of attempt murder and thereby committed jurisdictional error. I agree with this submission.
[16] In considering the evidence relevant to the issue of intent to kill, the preliminary inquiry judge sought guidance from the judgment of Campbell J. in R. v. Rajanayagam, [2001] O.J. No. 393 (SCJ); aff’d. [2001] O.J. No. 3236 (C.A.). In his ruling the preliminary inquiry judge stated:
Justice Campbell also, in the decision of his R. v. Rajanayagam, [2001] O.J. No. 393, states at paragraphs 16 to 19, “the mere fact that the defendant, A, shoots and wounds the victim, V, is not alone in the evidence of intent to kill. There must be some evidence from which the trier of fact may infer that the shooter intended something more than the actual and natural consequences of wounding.
And in further elaborating this test, Justice Campbell states “the fact that it is a question of degree and impossible to draw a bright line does not relieve the Court in deciding whether there’s any evidence of intent to kill of its duty to consider whether in the ordinary course of human affairs, a fair inference can arise and that the shooter intended to kill and not merely to wound. It does not weigh evidence, that is at the preliminary inquiry stage, it does not weigh evidence to say that some gun shots are clearly on one side of the line and other gun shots are clearly on the other side”.
[17] I have no quarrel with the principles stated by Campbell J. in Rajanayagam and their applicability to the facts of that case which involved 3 shots to the leg of the victim in circumstances where no evidence as to whether these were life-threatening was adduced.
[18] For the purposes of this application it is helpful to refer to the entirety of paragraph 18, which the preliminary inquiry judge did not refer to, where Campbell J. stated:
18 It is impossible to draw a bright line in every case between gunshots that provide evidence of intent to kill and gunshots that do not. It is entirely a question of degree having regard to all the circumstances including the firearm, the range, the caliber, the load, the projectile, the number of shots, the aim and the vital or non-vital portion of the anatomy struck by the bullet. (my emphasis)
At paragraph 22, Campbell J. further stated:
22 In this case the gunshot wound was not in or near a vital part of the anatomy. There is no evidence that the shots were aimed or directed towards or near any vital part of the anatomy. There is no evidence of any attempt to shoot at any non-vital part of the anatomy in a way that might reasonably be expected to kill. There is no evidence that the wounds were life-threatening or potentially life-threatening. There is no evidence, from the gunshots themselves, of intent to kill.
[19] On the evidentiary significance of the stab wounds I also adopt what was stated by A. Campbell J. in Regina v. Adewumi Odulate et al., [2001] O.J. No. 4029 (released October 17, 2001, Ontario Superior Court of Justice) at page 16:
The mere fact that A stabs and wounds V with life threatening results is not, alone, any evidence of intent to kill.
For attempted murder there must be some additional evidence from which the trier of fact may infer that the stabber intended something more than the actual consequence of the wound.
Some stab wounds, by themselves alone, provide such evidence. Other stab wounds do not. It is impossible to draw a bright line between the two. It is entirely a question of degree having regard to all the circumstances including the nature of the wound, the vital nature of the area wounded, the nature of the combat, the evidence or lack of evidence of premeditation or spontaneity or threat or plan, the presence or absence of evidence of defensive motivation, the persistence with which the stabbing is repeated or not, whether or not intent to kill has been established. (my emphasis)
(See also: R. v. Martin, 2010 ONCA 256, [2010] O.J. No. 1393 (C.A.)).
[20] In my view, in considering whether there is sufficient evidence of the specific intent to kill on a charge of attempt murder involving a stabbing the preliminary inquiry judge should consider inter alia the following evidence, cumulatively and together with all of the evidence in the case:
(i) the nature of the weapon
(ii) is the stab wound to a vital part of the anatomy (i.e. brain, neck, heart, abdomen)
(iii) the force with which the wound was inflicted
(iv) the number of wounds
(v) the evidence or lack of evidence of premeditation or spontaneity
(vi) the presence or absence of defensive motivation.
[21] In assessing the consideration that the preliminary inquiry judge gave to the issue of the intent to kill it will be helpful to again refer to what he said in his ruling concerning the stabbing:
In doing so he made the knife available to himself by deliberately maneuvering Ms. Mark to a position by – with her back to the sink where he could reach into the sink and get the knife.
In my view, that is consistent with an attempt to injure, to wound, to cause bodily harm, and it was intentional that he was going to get that knife to do so. What he did with that knife is he, in both choking her and stabbing her, he stabbed her once in the abdomen, drew his arm back and did no more in terms of stabbing with the knife. She was very seriously injured. He offered no assistance. …
In my view, the admonition in Morrow, the admonition in the weighing of the evidence, which is also discussed by Justice Martin in 1986 makes clear to me that I must not let speculation overcome the burden of the Crown has which is simply there must be some evidence of an intent, specific intent to kill. There is numerous cases on that point and they are binding on this Court to this juncture and therefore I am not prepared to commit on the attempt murder charge.
[22] In my view, the preliminary inquiry judge erred in holding that there was no evidence of a specific intent to kill and committed jurisdictional error in failing to consider the evidence that has probative significance on the issue of the intent to kill as an essential element of the charge of attempt murder.
[23] First, he did not consider the nature of the weapon used, i.e. a 10 inch non-serrated knife which clearly can be utilized to kill. (See: R. v. Martin, supra). Secondly, he did not consider that the wound was to a vital part of the anatomy. (See: R. v. Rajanayagam, supra; R. v. Martin, supra; R. v. Lefleur, [2000] O.J. No. 3961 (S.C.J.); R. v. Odulate, supra). Thirdly, while the judge did consider that the victim was seriously and obviously injured the mere fact that a wound is life-threatening is not by itself evidence of “specific intent to kill” but should be considered along with the other evidence pertinent to the stabbing on the issue of specific intent. In this case the stabbing resulted in a 10 cm. cut to the abdomen eviscerating the stomach and small bowel of the victim and was conceded to be life-threatening as the respondent testified she had to hold her hand over the wound as her insides were coming out.
[24] Fourthly, while the preliminary judge considered the single stab wound as an indicia of a lack of persistence and therefore of probative value in showing a lack of a specific intent to kill, he did not consider that the victim had fled from the control of the respondent and that he nevertheless advanced upon her with an uplifted knife prompting her to jump out of a second story window. Finally, there is no element of spontaneity or defensive action but rather the evidence discloses a deliberate “ushering” of the victim to the sink where the respondent obtained the knife which he utilized to stab the victim shortly thereafter. The findings of the judge below are that the actions of the respondent were deliberate and not spontaneous. Further there is no evidence of defensive action on the part of the respondent but rather the judge below found that the respondent exercised full control over the victim by choking her in order to obtain the knife and during the stabbing.
[25] In my view the failure of the preliminary inquiry judge to consider the evidence which I have outlined cumulatively with all of the other evidence constitutes jurisdictional error.
[26] The respondent submits that the reason the preliminary inquiry judge did not commit the accused on the charge of attempt murder is that he correctly concluded that there was not sufficient evidence to do so. Alternatively, the respondent submits that even if the judge was wrong in this regard such an error is an error in law not a jurisdictional error and is therefore not subject to review. In support he relies upon the decision of the Supreme Court of Canada in R. v. Deschamplain, 2004 SCC 76, [2004] S.C.J. No. 73 where at para. 23, Major J. states:
23 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: see Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 104; Dubois, supra, at p. 376; Russell, supra, at para. 21. 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 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: see Russell, supra, at para. 19. It is a jurisdictional error, however, for a preliminary inquiry judge to act arbitrarily: Dubois, supra, at p. 377. (my emphasis)
(See also: R. v. Deschamplain, supra, paras. 36-37; R. v. Russell, 2001 SCC 53, [2001] S.C.J. No. 53).
[27] In my view, the preliminary inquiry judge did not consider the whole of the evidence and in particular did not consider all of the evidence pertinent to the stabbing as I have outlined above.
[28] While it is improper for a reviewing court to intervene simply because it would have reached a different conclusion from the preliminary inquiry judge as to the sufficiency of evidence, this court is entitled to intervene because the preliminary inquiry judge has committed jurisdictional error because it has not considered all of the evidence as R. v. Deschamplain, supra, has explained.
[29] Having identified jurisdictional error what is the remedy? In R. v. Laframboise, [2007] O.J. No. 4212, the Ontario Court of Appeal stated the following:
In our view, the reviewing judge was correct when he concluded that the preliminary inquiry judge “committed a jurisdictional error by engaging in an exercise of weighing competing inferences to be drawn from the evidence.”
As but one example, we note the preliminary inquiry judge’s statement in his reasons to the effect that there was no reasonable inference available that Mr. Odette knew the victim was likely to freeze to death because of evidence which indicated that the victim “could have sought assistance or shelter.”
In our opinion, on its face, this reasoning demonstrates that the preliminary inquiry judge was weighing competing inferences in favour of the defence. Moreover, the error demonstrated by this example goes to the central issue in this case.
Having concluded correctly that the preliminary inquiry judge committed jurisdictional error, it was open to the reviewing judge to assess the sufficiency of the evidence in order to determine the appropriate remedy. We see no error in his conclusion in this respect. The appeal is therefore dismissed.
[30] In my view, having regard to the cumulative effect of the facts found by the preliminary inquiry judge, as well as the evidence and circumstances not specifically considered by him together with all of the evidence, there was sufficient evidence to support the charge of attempt murder as well as the charge pursuant to s. 246 of the Criminal Code.
[31] Accordingly, the application is granted and I direct the preliminary inquiry judge to commit the respondent for trial on those charges.
THEN R.S.J.
Released: July 23, 2013
COURT FILE NO.: M 190/12
DATE: 20130723
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
- and -
KEVIN GEORGE PAYNE
Respondent
REASONS FOR JUDGMENT
Then R.S.J.
Released: July 23, 2013