COURT FILE NO.: 1355-12
DATE: 2014/08/11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Paul McDermott, William S. Johnson and Kelly A. Weeks, for the Crown
Respondent
- and -
RONALD ALBERT MITCHELL, ERIC SHANE JOSEPH MEAROW and DYLAN ALBERT JOCKO
C. Anik Morrow, for the applicant, Ronald Albert Mitchell
Ariel Herscovitch, for the applicant, Eric Shane Joseph Mearow
C. Bruce Willson, for the applicant, Dylan Albert Jocko
Applicants
HEARD: May 12, 13 and 14, 2014
ellies j.
REASONS FOR DECISION
INTRODUCTION
[1] The applicants seek to quash the order of the preliminary inquiry judge committing them to stand trial on a charge of first degree murder under s. 231(5)(e) of the Criminal Code. The central issues are whether there was any evidence upon which a reasonable juror could (1) conclude that the victim was killed while being forcibly confined; and (2) determine the role that each of the applicants played in the killing. Superimposed on these evidentiary issues is the contention that the applicants were denied natural justice when the preliminary inquiry judge reached the conclusions he did on those issues without providing the applicants an opportunity to address the relevant evidence during the hearing.
[2] For the following reasons, the applications are dismissed. I find that the applicants were permitted to address the evidence in question and, therefore, they were not denied natural justice. I also find that, even if the rules of natural justice were breached, the applicants suffered no prejudice. The submissions they would have made concerning where the victim was when he was fatally stabbed could not have been accepted by the preliminary inquiry judge without causing a jurisdictional error. Further, a determination that each of the applicants played a significant role in the death of the victim was available from evidence other than the post-offence conduct evidence the applicants allege they did not address. A committal, therefore, was inevitable.
BACKGROUND FACTS
[3] On January 7, 2011, the victim, Wesley Hallam, attended a “party” at 30 Wellington Street, in Sault Ste. Marie. This was the residence of two of the applicants, Eric Mearow and Ronald Mitchell, who were present that night. The house was what is commonly referred to as a “flop house”. People could arrive at any time without an invitation in order to drink and do drugs.
[4] The house consisted of two floors and a basement. The living room and kitchen were located on the main floor. Three bedrooms and a bathroom were located upstairs. Mearow and Mitchell each occupied one of the bedrooms.
[5] Hallam, Mearow and Mitchell were friends. However, Hallam had been asked by Mearow to leave the house a week earlier, after making unwanted sexual advances towards a young lady named Rebecca Cirillo.
[6] There were a number of people at the house the night that Hallam was killed, including the third applicant, Dylan Jocko, and Cirillo. Hallam arrived carrying a knife in a sheath. He showed the knife off to a number of people, including Mearow and Mitchell, each of whom had their own switchblade knives, according to one witness.
[7] At one point in the night, Hallam, Mitchell, Mearow and two others went upstairs to Mearow’s bedroom to do cocaine. While they were there, a fight broke out between Hallam and Mitchell. There was evidence that Hallam had called Jocko a “goof” — a particularly offensive term to inmates — while they were in jail and that Mitchell had told Hallam before the fight broke out that Jocko could beat him up. During the course of the fight, while Hallam appeared to have the upper hand, he was struck by Jocko. There was also evidence that Mearow was involved in the fight, but the evidence stopped short of identifying the exact nature of his involvement.
[8] The fight stopped after Hallam was stabbed with a knife by Mitchell. There was conflicting evidence as to where the knife landed. One witness (Roxy Davison) said there was a wound on the back of Hallam’s head “right above the neck kinda”. Another (Joey Fabiano) testified the wound was in the upper left side of the head. And still another (Jesse Roach) said it was between the shoulder blades at the bottom of the neck. Mitchell himself later told his mother that he cut Hallam “maybe by the ear”.
[9] There was evidence of significant blood loss after Hallam was stabbed. Nonetheless, Hallam remained conscious, sitting on the floor of the bedroom, talking to one of the females present that night, who used a towel to try to stop the bleeding. From the floor of the bedroom, Hallam was then taken forcibly by the three applicants down the hall into the upstairs bathroom and the door to the bathroom was closed. Hallam’s voice was overheard coming from the bathroom by others in the house. The preliminary inquiry judge ruled that the words spoken by Hallam were admissible only to prove that he was still alive for a period of time after being taken to the bathroom. The preliminary inquiry judge also admitted the evidence of one witness who testified that Hallam sounded terrified. Eventually, Hallam was heard no more.
[10] While the three accused were alone upstairs with the victim, his body was dismembered. The applicants then removed the body parts from the house. The victim’s torso was eventually recovered from a creek in rural Sault Ste. Marie. His head and left foot were retrieved from a garbage site in Michigan.
[11] There were only three items of direct evidence concerning what happened to Hallam while the applicants were alone with him in the bathroom. One came from one of the females present at the party, who testified that she went upstairs to use the toilet at one point in the evening and saw the victim lying in the tub, facing away from her. While she was there, Jocko came in and told her that Hallam was dead. Another came in the form of statements made by Mitchell and Jocko the next day, who were overheard talking about the victim pleading for his life and how “they couldn’t believe they had done that”. The last came in the form of a videotaped statement given by Jocko to the police, in which he admitted that he helped put the victim in the bathtub, attempted to cut off his left hand, and participated in disposing of the victim’s torso and other body parts.
[12] The balance of the evidence as to what occurred while the applicants were alone with the victim in the bathroom was circumstantial. The bulk of it came from two expert witnesses: a forensic pathologist and a forensic anthropologist. The evidence of the pathologist, Dr. Queen, established that there were a total of eight wounds made with a sharp force or a bladed instrument on the body of the deceased, namely:
• two stab wounds to the right shoulder area;
• five stab wounds to the scalp; and
• one stab wound to the left side of the neck, which transected both the carotid artery and the jugular vein.
[13] According to the evidence of the anthropologist, Dr. Fairgrieve, there was an additional incised mark made by a bladed implement being inserted into the back of the victim’s neck and pressed into the third cervical vertebrae (C3), just above the point of decapitation.
[14] Only one of the stab wounds, namely the one to the left side of the neck, was fatal.
[15] The expert evidence also established that the victim was dead before his body was dismembered.
THE PRELIMINARY INQUIRY
[16] The applicants were each separately charged with indecently interfering with the remains of the victim and jointly charged with first degree murder. The charges proceeded to a preliminary inquiry which commenced before one judge, who was unable to continue, and, therefore, concluded before another.
[17] The applicants eventually conceded committal with respect to the indignity charges. With respect to the murder charge, the Crown sought a committal based on s. 231(5)(e) of the Code, which makes murder first degree murder if committed by an accused in the course of committing the offence of kidnapping or forcible confinement under s. 279 of the Code.
[18] The applicants argued that there was no evidence before the preliminary inquiry judge, direct or circumstantial, that would permit a properly instructed jury to reasonably determine:
(a) that the deceased died as a result of a stab wound inflicted in the bathroom, as opposed to the bedroom (which would mean that there was no kidnapping or forcible confinement occurring at the time); and
(b) if the fatal wound was inflicted in the bathroom what role, if any, each of the applicants had in bringing about the death of the victim.
[19] The applicants argued that findings on these issues could only be based on speculation and not on reasonable inferences from the whole of the evidence. Therefore, they sought a discharge on the murder charge.
THE PRELIMINARY INQUIRY JUDGE’S REASONS
[20] The preliminary inquiry judge delivered extensive reasons. Although he indicated early in those reasons that he did not intend to review the evidence of every witness, he set out in some detail the evidence of the Crown’s main witnesses, including six people who were present in the house on the evening the victim was killed and the two experts referred to earlier.
[21] After dealing with evidentiary issues surrounding certain utterances, the preliminary inquiry judge set out the law regarding his task at the hearing. He referred to the comprehensive statement of the law made by Hill J. in R. v. Pinnock, [2007] O.J. No. 1599, aff’d 2013 ONCA 190, 115 O.R. (3d) 81, leave to appeal to S.C.C. refused, [2013] S.C.C.A. No. 385. That law is well-settled and no issue is taken by the applicants with the manner in which the preliminary inquiry judge instructed himself. Section 548 of the Code requires a preliminary inquiry judge to order an accused to stand trial where, “in his opinion, there is sufficient evidence to put the accused on trial for the offence charged”. The preliminary inquiry judge must commit an accused for trial where there is direct evidence of each of the elements of an offence which, if believed, could result in a conviction: United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21.
[22] As the preliminary inquiry judge in this case properly indicated, weighing evidence is not permitted at the preliminary inquiry stage, except with respect to circumstantial evidence, in which case a limited weighing of the evidence is necessary to determine whether the evidence is reasonably capable of supporting an inference favourable to the Crown: Arcuri, at para. 23. In R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, McLachlin, C.J. and Bastarache J. put it this way, at para. 91:
The expression “limited weighing”, adopted by the full Court in Arcuri, was intended as a more accurate description of the judge's traditional function. The “limited weighing” description accords just as well with the approach to air of reality as originally set out in Wu, supra, and followed to this day. In Arcuri, McLachlin C.J. quoted at para. 24 from Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193 (H.L.), to emphasize the consonance of the limited weighing approach with the traditional distinction between the respective tasks of the judge and jury:
The Judge has a certain duty to discharge, and the jurors have another and a different duty. The Judge has to say whether any facts have been established by evidence from which [the matter in issue] may be reasonably inferred; the jurors have to say whether, from those facts ... [the matter in issue] ought to be inferred. [Emphasis added in original.]
This distinction is crucial. The judge does not draw determinate factual inferences, but rather comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence.
[23] After addressing the law governing his task, the preliminary inquiry judge next addressed the law relating to s. 231(5) of the Code. That section reads:
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(e) section 279 (kidnapping and forcible confinement).
[24] As the preliminary inquiry judge correctly indicated, the Supreme Court of Canada held in R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306, at p. 325, that in order to obtain a conviction for first degree murder pursuant to (the predecessor to) s. 231(5), the Crown must establish beyond a reasonable doubt that:
(1) the accused is guilty of the underlying crime of domination or attempting to commit that crime;
(2) the accused is guilty of the murder of the victim;
(3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim;
(4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and
(5) the crimes of domination and murder were part of the same transaction; that is to say, the death was caused while committing the offence of domination as part of the same series of event.
[25] Thus, Harbottle requires the Crown to prove not only that each accused was a party to murder, but that each was a “substantial cause of the death”. On behalf of the Supreme Court, Cory J. put it this way, at p. 324:
The substantial causation test requires that the accused play a very active role – usually a physical role – in the killing. Under [s. 231(5)], the actions of the accused must form an essential, substantial and integral part of the killing of the victim.
[26] Against this legal backdrop, the preliminary inquiry judge then proceeded to deal with the argument that the evidence was insufficient to allow more than mere speculation about the role played by each accused in the death of the victim. He began his analysis by writing, at para. 101:
While not raised by the Crown in submissions, I must consider the legal effect of the post[-]offence conduct in this case. It is trite that post[-]offence conduct is a form of circumstantial evidence which can be considered by me.
[27] After reviewing the relevant jurisprudence and the evidence of post-offence conduct on the part of each of the applicants in the case before him, the preliminary inquiry judge concluded, at para. 111:
… when considered along with other evidence, the post[-]offence conduct does permit a juror properly instructed, to reasonably infer that each of the accused participated in bringing about the death of Mr. Hallam in the bathroom.
[28] As to the defence argument that there was no direct or circumstantial evidence sufficient to determine where the victim was at the time the fatal wound was inflicted, the preliminary inquiry judge held, at para. 112, that it was open to a jury to conclude that the fatal wound was administered in the bathroom, rather than the bedroom, based on the evidence of injury to C3 and the evidence of the witnesses present in the bedroom that evening that the victim appeared to have been stabbed in the back (and not the side) of the head or neck.
[29] As a result, the preliminary inquiry judge committed the applicants to stand trial on both counts faced by each of them.
ISSUES
[30] The scope of review on an application of this type is very limited. Errors of law are not reviewable by way of certiorari: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 17. Only errors going to a tribunal’s jurisdiction are reviewable: R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 99. A tribunal that breaches the rules of natural justice commits a jurisdictional error: R. v. Forsythe, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268, at p. 272. It is also a jurisdictional error for a preliminary inquiry judge to commit an accused to stand trial where there is no evidence on an essential element of the offence charged: Skogman, at p. 106.
[31] The applicants argue that both types of jurisdictional error occurred here. They submit that there was no evidence before the preliminary inquiry judge upon which he could reach the conclusions he did regarding where the victim was at the time the fatal wound was inflicted and the role each accused played in the death of the victim. The applicants also contend that they were deprived of natural justice when the preliminary inquiry judge relied on the evidence he did concerning the injury to C3 and the post-offence conduct without providing them with an opportunity to address the significance of that evidence. They argue that these errors were such as to require the committal to be quashed.
[32] I will deal with this last issue first.
ANALYSIS
Whether the Applicants were Deprived of Natural Justice
[33] The applicants argue that they were deprived of natural justice when the preliminary inquiry judge relied on evidence of their post-offence conduct to commit them to trial. They contend that the Crown did not rely on that evidence in support of committal and that, therefore, they did not make submissions on the issue. Had they done so, they would have argued that the post-offence conduct had no probative value as to the level of culpability of each accused. In addition, the applicants also contend that natural justice was denied because the preliminary inquiry judge failed during the hearing to alert the defence to his interest in the evidence of Dr. Fairgrieve concerning the mark found at C3. They argue that, as a result of the preliminary inquiry judge’s failure, they did not address Dr. Queen’s evidence that he saw no flesh wound on the victim’s body corresponding with the injury seen at C3.
[34] The applicants rely on the decision in R. v. Papadopoulos, [2004] O.J. No. 2766 (S.C.), aff’d (2005) 2005 CanLII 8662 (ON CA), 201 C.C.C. (3d) 363 (Ont C.A.) in which Durno J. found a breach of the rules of natural justice when a preliminary inquiry judge based a committal on post-offence conduct evidence concerning which counsel had not made any oral submissions. They argue that the same finding should be made in this case.
[35] There is no issue that the right to be heard is one of the rules of natural justice: Supermarchés Jean Labrecque Inc. v. Flamand, 1987 CanLII 19 (SCC), [1987] 2 S.C.R. 219, at p. 236. The issue is whether the applicants were deprived of the right to be heard in this case. I am not persuaded that they were. A thorough review of Papadopoulos and the other cases on this issue to which I have been referred reveals that, in order to succeed, the applicants must establish that they were deprived of the right to make submissions by virtue of some act on the part of the court or the Crown, something which has not been established on the record before me.
[36] In R. v. Taillefer (1978), 1978 CanLII 2291 (ON CA), 42 C.C.C. (2d) 282 (Ont. C.A.), an appeal was taken from the order of the reviewing judge, who dismissed an application to quash the committals for trial of the appellants on a charge of assault causing bodily harm. The Court of Appeal allowed the appeal and quashed the committals. However, the preliminary inquiry judge in that case had refused to permit counsel for the accused to make submissions on the issue of committal. The same thing occurred at the preliminary inquiry in R. v. Harrington (2004), 2004 CanLII 29231 (ON CA), 181 O.A.C. 395, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 173, to which I will make further reference below.
[37] In contrast, Then J. found that no breach of the rules of natural justice had occurred in R. v. Escourse, [2000] O.J. No. 3962 (S.C.) where a preliminary inquiry judge used the evidence on one count as similar fact evidence to commit on two other counts in the absence of any submissions on that issue by counsel. Then J. distinguished Taillefer on the basis that the preliminary inquiry judge in Taillefer had refused counsel permission to make submissions, as I do. He held that counsel in the case before him had chosen to emphasize other issues and failed to address the significance of the evidence used as similar fact. Then J. wrote in Escourse, at para. 14:
While it would have been better, if only as a matter of prudence for the preliminary inquiry Judge to have invited counsel to make submissions as to the evidentiary effect of Count 4, a failure to do so does not in the circumstances amount to a denial of natural justice but at most constitutes an error in the exercise of jurisdiction. I cannot accept that the preliminary inquiry Judge at the conclusion of the taking of evidence has a duty as a matter of natural justice to point out to counsel the evidence which is relevant to committal and to require argument as to this evidence at the risk of a loss of jurisdiction for a failure to do so. The responsibility for making submissions with respect to evidence relevant to the issue of committal lies with counsel.
[38] In Papadopoulos, the Crown had indicated in both its written and oral submissions that it was relying on evidence of post-offence conduct only with respect to the participation of each accused in the death of the victim, and specifically indicated that it was not relying on that evidence with respect to the issue of the degree of culpability of each accused, i.e. manslaughter, second degree murder, or first degree murder. Durno J. held, at para. 108, that the preliminary inquiry judge had inadvertently misled counsel into believing that he, too, would not rely on post-offence conduct regarding the level of the accused’s culpability. Although the Court of Appeal dismissed the appeal from Durno J.’s decision, it expressed some doubts about this aspect of Durno J.’s decision, given that the appellants had been provided with an opportunity to make full written submissions, some of which addressed the post-offence conduct issue: R. v. Papadopoulos (2005), 2005 CanLII 8662 (ON CA), 201 C.C.C. (3d) 363 (Ont. C.A.), at para. 12.
[39] In the present case, there was no refusal by the preliminary inquiry judge to permit submissions on either the C3 or the post-offence conduct issues. Nor was there any conduct on the part of either the Crown or the preliminary inquiry judge that could reasonably be said to have misled counsel for the applicants. In fact, as I will point out, both issues were addressed, albeit briefly, by counsel during argument.
[40] Although the preliminary inquiry judge stated in his reasons, at para. 101, that the Crown had not raised the legal effect of post-offence conduct, the transcript shows that the Crown did rely in its oral submissions on the post-offence conduct as circumstantial evidence upon which to base a committal under s. 231(5) of the Code. At p. 3227 of the transcript, Ms. Weeks made the following submissions on behalf of the Crown:
Ultimately the evidence heard during the course of this preliminary inquiry is capable of leading to a conclusion that each of the accused persons participated in the murder in such a manner that each was an essential, substantial and integral part of the killing of Wesley Hallam. On the evidence heard at this preliminary hearing, there is at least some evidence that one: the three accused persons were together on the night of the murder at 30 Wellington Street; two: according to various eye witnesses, they – all three accused participated in an altercation in Eric Mearow’s bedroom; three: all three participated in forcibly moving Mr. Hallam from the bedroom to the bathroom against his will; four: Mr. Hallam was then heard pleading for his life from within the bathroom, this occurs immediately after the three accused are seen forcing him into that bathroom; five: at least one person testified downstairs that he was being killed upstairs; six: no one sees any of the three accused outside of the bathroom until after Mr. Hallam goes silent; seven: Mr. Hallam’s dead body was seen in the bathtub in that bathroom shortly afterwards; eight: all three accused were observed to be involved in activities surrounding the dismemberment and disposition of Mr. Hallam. [Emphasis added.]
[41] In addition, the transcript reveals that the issue of whether there was any evidence of a wound corresponding to the injury at C3 was addressed in closing argument by counsel for Mearow and responded to by the Crown in its submissions. At p. 3440 of the transcript, the following appears:
Ms. Weeks: During her summation Ms. Penman indicated that there was no injury to the back of the head which would correspond with Jesse Roach’s evidence (of a wound at the bottom of the neck). I don’t know if you recall that?
Ms. Penman: I said it was between the shoulder blades. That description.
Ms. Weeks: Right and that there was no physical evidence to support that. And my submission to the court is that there is in fact evidence from Dr. Fairgrieve who testified. I don’t have the cite but – of the actual – where the questions and answers are during his examination in-chief, but Dr. Fairgrieve testified that there was the severance between the fourth and fifth cervical vertebrae and that the fourth, the third cervical vertebrae which is directly above the fourth, so, when the head was found and it was examined, he observed there was an incised mark appearing to be from a bladed instrument. And when questioned about how that would be occasioned he testified it would be the result of a bladed instrument being inserted into the back of the neck and pressed into the area of the third cervical vertebrae.
[42] Thus, the applicants were given an opportunity to address the issues concerning which they allege they were deprived of the right to be heard. Even if the conduct of the preliminary inquiry judge fell somewhat short of the ideal referred to by Then J. in the excerpts set out above, I agree with Durno J.’s opinion expressed in Papadopoulos, at para. 48, that the preliminary inquiry judge is not restricted to examining only the inferences the Crown suggests should be drawn. This was the ruling in Skogman, in which the Supreme Court held, at p. 107:
The argument, agreement or undertaking, as the case may be, of a Crown agent as to the consequence to be drawn from testimony taken at trial is not in any way binding upon the Court… It follows that the [C]ourt is not in any way bound to accept the Crown’s view of this evidence nor the Crown submission of law based upon the Crown’s view of that evidence. Rather, the Court must independently assess the record to determine whether there was any evidence to support the committal for trial.
[43] Therefore, I find no breach of the rules of natural justice in this case. However, in the event that I am wrong, it is my further view that the committal should not be quashed, for reasons which I will now explain.
The Effect of any Breach
[44] A breach of the rules of natural justice at a preliminary inquiry does not automatically result in the quashing of a committal. The committal will stand if the accused suffered no prejudice despite the breach: Harrington, at para. 11. As I indicated earlier, the preliminary inquiry judge in Harrington had refused to allow submissions from the defence regarding committal. The Court of Appeal found that the appellant had suffered a denial of natural justice which was “unquestionably serious in nature”. However, the court found that Harrington had suffered no prejudice because a committal in his case was inevitable. His appeal was, therefore, dismissed.
[45] There is some confusion in the jurisprudence regarding which party bears the onus of demonstrating that the accused suffered no prejudice. At para. 58 of his decision in Papadopoulos, Durno J. wrote:
Where the issue is whether the committing justice acted in breach of the principles of natural justice, as all the applicants contend, in order to succeed, they must establish that they were denied the opportunity to make submissions and that the denial resulted in prejudice to them. If the applicant would have been committed for trial in any event, there is no prejudice: R. v. Harrington [Citation omitted and emphasis added.]
[46] However, later in the same decision, Durno J. appears to have relied on Harrington for the opposite proposition, namely that the onus lies on the Crown to demonstrate that the accused suffered no prejudice. At para. 86, he wrote:
The failure to permit an accused person to be heard upon completion of the evidence at a preliminary inquiry constitutes a denial of natural justice, a jurisdictional error which will result in the quashing of the committal, unless it is shown that the accused suffered no prejudice: Harrington; R. v. Taillefer et al. [Citations omitted and emphasis added.]
[47] With great respect for my colleague, I am unable to agree that Harrington stands as authority for either proposition. However, I need not determine who bears the onus, inasmuch a decision in this case does not turn on that issue. Regardless of who bears the onus, I have concluded that the applicants have suffered no prejudice because a committal was the inevitable result in this case.
[48] In Papadopoulos, Durno J. considered the issue of prejudice in two stages. First, he considered whether the post-offence conduct was capable of supporting the inference for which it was relied upon by the preliminary inquiry judge. He held that if it was, the reviewing judge was then required to consider the test in R. v. Tuske, [1978] O.J. No. 1253 (C.A.), in which Martin J.A. wrote for the Court of Appeal, at para. 3:
[T]he reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially 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.
[49] Thus, Durno J. held in Papadopoulos that the reviewing judge need not quash the committal if the preliminary inquiry judge could have used the post-offence conduct evidence to commit after providing the applicants with an opportunity to make submissions (para. 59). He also held that, if the post-offence conduct was not capable of supporting a committal, the second step required the applicants to establish that there was no other evidence upon which the preliminary inquiry judge could have reached the conclusion he did (para. 149).
[50] The Court of Appeal agreed with Durno J.’s view that he had discretion not to grant an order quashing the committal despite a breach of the rules of natural justice (para. 26). However, the court disagreed with Durno J. on how that discretion should be exercised. The Court held that the test in Tuske was not applicable and that the reviewing court’s discretion not to grant a remedy despite a breach of the rules of natural justice must be exercised based on whether the result would have been the same, not on whether it could have been the same.
[51] As I will explain in the sections that follow, in my view, the result in this case would have been the same even if the applicants had made more fulsome submissions at the preliminary inquiry for the following reasons.
Had they been accepted, the submissions the applicants would have made concerning the inferences available about where the victim was when he was fatally stabbed would have resulted in jurisdictional error.
Even if the preliminary inquiry judge disregarded the post-offence conduct evidence, the remaining evidence made committal inevitable, either on the basis relied upon by the preliminary inquiry judge, namely as principals under s. 21(1) of the Code, or as parties under s. 21(2).
Reasonable Inferences Regarding Where the Victim was when the Fatal Wound was Inflicted
[52] The applicants argue that the absence of evidence from Dr. Queen of a flesh wound on the body of the victim corresponding to the injury to C3 observed by Dr. Fairgrieve makes it impossible to infer that the injury occurred before dismemberment. They argue that it would be speculation for a jury to conclude, as the preliminary inquiry judge held they could, that such a wound took place in the bedroom because:
(a) there was no evidence that such a wound would cause significant blood loss;
(b) on the other hand, there was evidence that the fatal stab wound could have caused significant bleeding;
(c) there was evidence of a lot of blood leading from the bedroom to the bathroom; and
(d) contrary to the preliminary inquiry judge’s reasons, at para. 43, Dr. Queen did not testify that there would have been arterial spurting associated with the fatal wound; in other words, that there would have been more blood than that observed by the witnesses in the bedroom and the hallway, if the fatal wound was administered in the bedroom.
[53] Therefore, the applicants argue, there was no reasonable inference available from the evidence that the fatal wound was administered in the bathroom. As a result, they submit that there could no committal under s. 231(5) because there was no forcible confinement occurring at the time that the fatal wound was inflicted in the bedroom.
[54] Although they may not have advanced the C3 argument before the preliminary inquiry judge as fully as they did before me, it is obvious from the judge’s reasons that the applicants fully argued their submissions about the blood before him: see paras. 119 and 120 of his reasons. He rejected the submission that the inferences urged upon him by the applicants were the only reasonable ones. In my opinion, he was correct. I believe that, in making their argument, the applicants are confusing the absence of evidence from which to make an inference with the presence of conflicting evidence.
[55] Inference drawing is a two-step process. First, it is necessary to find the primary fact or facts from which the inference is alleged to flow. Where it is alleged that the primary facts from which an inference has been drawn by the preliminary inquiry judge were not established by the evidence, the task of the reviewing court is a relatively simple one. Where primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation: R. v. Alexander, [2006] O.J. No. 3173 (S.C.), at para. 24. This is what occurred in R. v. Portillo (2003), 2003 CanLII 5709 (ON CA), 176 C.C.C. (3d) 467 (Ont. C.A.), one of the cases relied upon by the applicants.
[56] The second step in drawing an inference requires a determination as to whether the primary fact or facts make the existence of the inferred fact more likely. As Ducharme J. pointed out in Alexander, at para. 21, this second step involves the application of inductive, rather than deductive, logic. In other words, the inference to be drawn from the primary facts may, but not necessarily must, follow. Deciding whether it does usually involves the application of common sense and human experience. Because we all have different life experiences, the fact that inference drawing is an inductive process means that there may be room for disagreement among reasonable people as to whether an inference should be drawn from an established primary fact. I believe that this is one of the reasons why the reviewing judge’s task in an application such as this is usually limited to determining what the preliminary inquiry judge could reasonably do, not what the jury could: Tuske.
[57] This case provides an example of the type of disagreement that can arise concerning the second stage of inference drawing. Counsel for Mitchell submits that the suddenness with which the fight in the bedroom broke out between her client and the victim is evidence against the inference drawn by the preliminary inquiry judge of a common purpose or joint enterprise among the applicants. She argues that it shows a lack of planning, instead. That is not an unreasonable position. However, others may reasonably believe the opposite. The applicants and the victim were well known to each other. Mitchell and Hallam were “friends”. In my view, it would be open to the preliminary inquiry judge to conclude that the suddenness with which the fight broke out demonstrates a pre-existing animosity, as friends do not usually assault one another so easily. This is especially so in light of the evidence name-calling that occurred while one of the applicants was in jail with the victim.
[58] The argument advanced by the applicants concerning the preliminary inquiry judge’s conclusion on the C3 wound involves the first stage of the inference drawing process, namely whether there were primary facts established by the evidence from which to draw the inference the preliminary inquiry judge held was available to a juror. In my view, there were.
[59] There was no evidence in this case that the victim suffered wounds at any time prior to being in the bedroom. Further, all of the witnesses testified that only one wound was inflicted in the bedroom and according to two of those three witnesses, the wound was not on the side of the neck, the location at which both experts placed the fatal wound. It would open to a jury to conclude that the wound to C3, which was not the fatal wound, occurred in the bedroom, based on the evidence of the witnesses who observed injury to the area at the back of the victim’s neck, namely Davison and Roach, and Dr. Fairgrieve’s evidence of injury to the spine in that area that could have been caused by a bladed implement. It is true that it would be necessary for the jury to reconcile this evidence with that of Dr. Queen, who did not note any flesh wound that would correspond with the injury to C3. It might actually be necessary for the jury to reject the evidence of Dr. Queen and prefer the evidence of Dr. Fairgrieve in combination with the evidence of the Davison and Roach. However, the jury would be entitled to do that, in my view.
[60] Therefore, I conclude that it was open to the preliminary inquiry judge to reach the conclusion he did concerning the inferences available to the jury about where the victim was at the time the fatal wound was inflicted. Indeed, in my view, had the preliminary inquiry judge accepted the applicants’ submissions on this issue, he would have committed a jurisdictional error. As I indicated earlier, a judge presiding at a preliminary inquiry is only permitted to engage in a limited weighing of the circumstantial evidence for the purpose of determining the field of reasonable inferences available from that evidence. Where there is a reasonable inference available in favour of the Crown, that inference must be included within that field. The submission of the applicants would require the preliminary inquiry judge to choose between two inferences; one favourable to the Crown, and one favourable to the defence. Had he done so, it would have amounted to a jurisdictional error: see Arcuri; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 25; R. v. Manasseri, 2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 29.
The Evidence Regarding Participation
[61] I turn now to the applicants’ second principal argument, namely that there was no evidence of the role played by each of the applicants in bringing about the death of the victim in the bathroom.
[62] The applicants argue that neither the pre-offence nor the post-offence evidence in this case was capable of supporting an inference that any particular accused murdered the victim, let alone satisfying the “substantial and integral cause” requirement in Harbottle with respect of each of them. I am unable to agree. In my view, the post-offence conduct, in combination with the evidence of events occurring before the death of the victim, had probative value with respect to both the second and the third Harbottle criteria. Even if I am wrong in that conclusion, I am of the further view that the pre-offence conduct evidence was sufficient, by itself, to permit the preliminary inquiry judge to commit.
[63] I will begin to explain by looking at the post-offence conduct evidence.
(A) Post-offence Conduct Evidence
[64] In support of their submission that the post-offence conduct evidence in this case is of no probative value in determining the role each accused played in the death of the victim, the applicants rely on the decision in R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, and other cases in which it was held that post-offence conduct that may be equally explained as consciousness of guilt of two offences will have no probative value where the accused admits culpability for one of those offences: Arcangioli, at p. 145. They argue that the post-offence conduct in this case is as consistent with involvement in the forcible confinement as it is in the death of the victim and therefore of no probative value with respect to either the second or the third Harbottle criteria. I am unable to agree for three reasons.
[65] First, in Arcangioli and many of the other cases to which I was referred, the probative value of the post-offence conduct was diminished because the accused admitted being involved in the death of the victim, whereas no such admission has been made here. In my view, the post-offence conduct in this case had probative value as evidence of the involvement of each accused going beyond mere forcible confinement.
[66] In this respect, the present case is distinguishable from R. v. Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51. In that case, Doherty J.A. held on behalf of the court that the post-offence conduct of lying was as consistent with being involved in a carjacking scheme as it was with being involved in a murder scheme. The post-offence conduct in this case, however, goes far beyond that. All three accused participated in cutting up the victim’s body and disposing of the parts in different places. This evidence would support an inference that they were involved in the death of the victim and not merely his confinement, in my opinion.
[67] I believe that this is what the preliminary inquiry judge was referring to when he wrote in para. 114 of his reasons:
When considering the cumulative effect of the post-offence conduct together with the common sense inference of intention from conduct and its consequences, the jurors would be entitled to infer that each accused participated in causing the death of Mr. Hallam and that each accused intended to kill Mr. Hallam or intended to cause bodily harm which they knew was likely to cause his death and were reckless as to whether death ensued.
[68] Second, the post-offence conduct in this case, when tied to the pre-offence evidence, was probative as evidence of a common intention on the part of the applicants to kill the victim. When viewed in the context of the entire case, post-offence conduct evidence may have probative value with respect to an accused’s state of mind at the time of an offence. In R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), Doherty J.A. wrote at p. 552:
Evidence of after-the-fact conduct is a type of circumstantial evidence. Its potential probative value will depend upon the nature of the evidence, the issues in the case and the positions of the parties. Often, evidence of after-the-fact conduct will be probative of the accused’s participation in the crime alleged, but will have no probative value in determining the level of the accused’s culpability. Sometimes, however, as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind: R. v. White and Cote (1998), 1998 CanLII 789 (SCC), 125 C.C.C. (3d) 385 (S.C.C.) at 400-403.
[69] In MacKinnon, Doherty J.A. held that evidence that the two accused were excited and laughing shortly after the killing was evidence from which an inference could be drawn that the two accused had done exactly what they had planned to do.
[70] The preliminary inquiry judge in the present case put the post-offence conduct evidence to similar use, in my view. At para. 106 of his reasons, he wrote:
I am mindful of the fact that in this case the Crown has not argued that the post[-]offence conduct can provide evidence of planning and deliberation. In fact, the Crown has not made any observations or submissions with respect to the evidentiary value of post[-]offence conduct. Nonetheless, I must consider the aforementioned case law as it may permit an inference to be drawn with respect to both an accused’s participation in a criminal offence and his/her level of culpability. In this case I must examine the post[-]offence conduct of each accused in order to determine whether any reasonable inference can be drawn regarding their participation in the murder of the deceased.
[71] It is true that the preliminary inquiry judge used the words “planning and deliberation” in this paragraph and in one other, and that the Crown did not seek a committal on this basis under s. 231(2). However, it is clear that, in the paragraph above, the preliminary inquiry judge was referring (erroneously, as I have pointed out) to the fact that the Crown had not made any submissions with respect to the use to which post-offence conduct evidence could be put.
[72] The second reference is found in the first sentence of para. 111, in which the preliminary inquiry judge wrote:
In the absence of any other relevant pre-offence conduct by any of the accused, the post[-]offence conduct in this case does not in my view permit an inference regarding planning and deliberation.
In my view, this was a reference to the fact that post-offence conduct may be probative of an accused’s state of mind. The reference arose as a result of the preliminary inquiry judge’s consideration of a number of cases, including MacKinnon. Based on these cases, the preliminary inquiry judge concluded that the circumstantial evidence, including the post-offence conduct evidence, was capable of sustaining an inference that the accused participated in the death of the victim as “co-principals” because they had formed an intention in common to kill him. In my view, he was correct. The evidence that two of the three applicants were involved in assaulting the victim, that all three of the applicants where present when Mitchell stabbed the victim, that all three could see that the victim was bleeding badly, that all three forced the victim into the bathroom, that all three remained there until the victim was dead and that all three participated in cutting up the body, disposing of the parts and cleaning the house is evidence from which a reasonable juror could find an intention in common to kill the victim or cause him bodily harm that each accused knew was likely to cause the victim’s death. As I will explain when I deal with the pre-offence evidence, once such a finding of common intention is made, it is not necessary to determine the precise role each accused played in bringing about the death in order to sustain a conviction for murder.
[73] The third distinguishing feature of the post-offence conduct evidence in this case relates to the nature of the evidence itself. Post-offence conduct can, in some cases, be indicative of the degree of culpability of an accused in causing the death of the victim. In R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, Major J. wrote the following on behalf of the Court with respect to the probative value of post-offence conduct, at para. 32:
It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts. By way of illustration, where the extent of the accused’s flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent with the offence charged. Post-offence conduct may also be relevant in cases where the accused has admitted to committing a physical act but asserts that the act was justified in some way; in those circumstances, an act of flight or concealment might constitute some evidence from which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable act and had not, for example, acted in self-defence. See Peavoy, supra, at p. 241; Jacquard, supra, at p. 348. [Emphasis added.]
[74] The conduct of the applicants after the death of the victim in this case went well beyond attempting to hide themselves. Witnesses who were present that night testified that they were told to stay downstairs and not to leave while tools were retrieved from the basement and were heard being used upstairs, where the three accused were alone with the corpse. One witness testified that all three accused carried what later turned out to be the torso of the victim downstairs in a comforter, put it in the trunk of a car and drove away to dispose of it. She also testified that Mitchell and Jocko later came down with backpacks in which they said they had the victim’s head, feet and hands and that they left to dispose of those parts, too.
[75] In my view, this evidence of extensive efforts over the course of a night to cut the victim into pieces using hand tools and to conceal different body parts in various locations is evidence from which a reasonable juror could conclude that the applicants played more than a minor role in the death of the victim. This is evidence upon which a reasonable juror, in combination with the pre-offence conduct, could conclude that each applicant participated in the death of the victim to a substantial degree. I agree with the preliminary inquiry judge that the post-offence conduct evidence in this case is relevant to the third Harbottle criterion: see para. 115 of his reasons.
[76] Ordinarily, even if I agreed that the preliminary inquiry judge misapplied the post-offence conduct evidence, it would amount only to an error of law and would not go to jurisdiction: Papadopoulos, at para. 149. However, if the applicants had been deprived of the right to be heard on the issue, the misapplication of post-offence evidence would constitute a jurisdictional error, unless the result would have been the same regardless of the breach of natural justice. Based on the pre-offence evidence, I have concluded that it would.
(B) Pre-offence Evidence
[77] Counsel for Mearow argues that the preliminary inquiry judge made the evidence of post-offence conduct an essential factor in his decision to commit: see Factum, at para. 80. I do not believe that is correct.
[78] The full text of para. 111 of the preliminary inquiry judge’s reasons reads:
In the absence of any other relevant pre-offence conduct by any of the accused, the post offence conduct in this case does not in my view permit an inference regarding planning and deliberation. The evidence regarding some potential animus between Mr. Hallam and Rebecca Cirillo is far too ambiguous. Similarly, the evidence of possible animosity between Mr. Jocko and Mr. Hallam resulting from Mr. Hallam having called Mr. Jocko a goof has little probative value when it comes to making inferences regarding a possible state of mind. However, when considered along with other evidence, the post[-]offence conduct does permit a juror properly instructed, to reasonably infer that each of the accused participated [in] bringing about the death of Mr. Hallam in the bathroom. [Emphasis added.]
As I read this paragraph, placing it in the context of the rest of his reasons, the preliminary inquiry judge found that the post-offence conduct only had relevance in connection with the pre-offence conduct and not the opposite, as argued by counsel for Mearow. In other words, he put a premium on the pre-offence conduct.
[79] The applicants contend that the pre-offence conduct evidence does nothing more than establish that they forcibly brought the victim to the bathroom and that they were present when he died. Although not articulated in exactly this way, they contend that there was no evidence from which to infer either the actus reus or the mens rea for murder. With respect to the former, they stress that the pre-offence evidence can give rise to no reasonable inference as to what occurred in the bathroom and the role played by each accused in bringing about the death of the victim there. According to the applicants, at most the evidence could establish that they aided one another to commit the offence of kidnapping or forcible confinement. With respect to the mens rea, the applicants submit that evidence that all three accused dragged the victim to the bathroom is not sufficient to permit an inference that all three intended to kill him or to cause him bodily harm that they knew would likely cause his death. They rely on cases such as R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, in which it was held that mere presence at the scene is not sufficient to find an accused liable as a party to an offence, in this case, murder.
[80] In my view, the applicants’ submissions fail to recognize the context in which the victim was taken to the bathroom. Placed in its proper context, the pre-offence evidence in this case went beyond establishing that the applicants merely aided one another to commit the offence of kidnapping or forcible confinement. The applicants dragged this man - a man who was bleeding profusely - not downstairs, where he might have been closer to help, but into a bathtub, where he was further away from it. Before they got him there, the victim was behaving in a way that made it obvious he was afraid of what would happen in the bathroom. Yet, the applicants were not heard to say a single comforting word to him. Once they had him in the bathroom, the victim was then stabbed seven more times, according to Dr. Queen. Two of the accused had been seen carrying knives not long before the fight broke out. After the victim was in the bathroom, but before he was heard no more, Mearow ordered everyone but the other two accused downstairs: see Mitchell Reply Factum, at para. 26. This evidence is sufficient to allow a properly instructed juror to infer that the applicants were involved in a joint enterprise to cause the death of the victim or to cause him bodily harm that they knew would likely cause his death, in my opinion.
[81] As to the actus reus, it is well-settled that, where the evidence is sufficient to allow a juror to make an inference of a common intention to commit murder, it is unnecessary that there be evidence of precisely the role played by each accused in carrying it out: R. v. K. (A.) (2002), 2002 CanLII 45097 (ON CA), 169 C.C.C. (3d) 313 (Ont. C.A.); R. v. Fatima (2006), 2006 CanLII 63701 (ON SC), 42 C.R. (6th) 239 (Ont. S.C.), at para. 57; Portillo, at paras. 70-71.
[82] Thus, the pre-offence evidence was sufficient to satisfy the second Harbottle requirement. However, in order to be committed to stand trial for first degree murder under s. 235(1), a common intention is not enough. Harbottle requires proof of the “essential, substantial and integral” role that an accused played in bringing about the death. Was the pre-offence evidence in this case capable of allowing such an inference? I believe it was.
[83] In R. v. Brown (2002), 2002 CanLII 41917 (ON CA), 160 O.A.C. 141, the Court of Appeal dismissed the appeal of an accused who had been convicted of first degree murder under s. 231(5)(e) of the Code. In a brief endorsement, the Court held that it was open to the jury to find that the appellant played a substantial and integral part in the death of the victim where there was evidence from which to conclude that the appellant bound the deceased and either shot him or participated in shooting him in the leg so as to make it impossible for him to flee or otherwise defend himself.
[84] In R. v. Norouzali (2003), 2003 CanLII 10348 (ON CA), 177 C.C.C. (3d) 383 (Ont. C.A.), the accused appealed his conviction for first degree murder in a case in which the death of the victim occurred during a forcible confinement, as it did in the case at bar. The appellant argued that the trial judge ought to have instructed the jury that they could not convict him under s. 235(1) if they had a reasonable doubt as to whether he was the individual who shot the victim, as there would otherwise be no evidence that he had been a “substantial and integral cause” of the death. In dismissing the appeal, the Court of Appeal held that the circumstantial evidence indicated that Norouzali played a substantial and integral role in the killing, as the jury was entitled to conclude that it took both the shooter and the non-shooter to get the victim to the execution site.
[85] In R. v. Bigras, 2004 CanLII 21267 (ON CA), the Crown appealed after the trial judge directed the jury to acquit the respondents of first and second degree murder where the victim was killed during a forcible confinement. The respondents had laid in wait for the victim to “teach him a lesson”, assaulted him, took him to a remote location at which he was further beaten, and left him dead or dying in circumstances in which it was highly unlikely he could get help. Unlike the present case, in Bigras, another individual, who was not charged and testified for the Crown, admitted that he had been the one who delivered the blows to the victim’s head which the medical evidence indicated was likely the cause of death.
[86] In Bigras, the Court of Appeal allowed the appeal and ordered a new trial. On behalf of the Court, Sharpe J.A. held that, in directing a verdict of acquittal, the trial judge had usurped the jury’s function by impermissibly weighing evidence. He held that the evidence was not only sufficient to leave second degree murder with the jury, but that evidence that the respondents were actively engaged in binding and confining the victim while he was being beaten by someone else was sufficient to satisfy the third Harbottle criterion and to leave first degree murder with the jury, as well.
[87] These cases are to be contrasted with those relied upon by the applicants. One such case is R. v. Omar, 2012 ONSC 3756, [2012] O.J. No. 3070, in which four inmates were charged with aggravated assault upon another inmate. Omar and the victim had agreed to meet to settle a dispute and were later seen on surveillance cameras fighting in an area near the washroom facilities. The fight quickly moved out of sight of the camera, which later showed the three other accused join the two combatants, in an area out of view. The accused were later seen leaving that area and the victim behind.
[88] The trial judge acquitted the accused. He found that the Crown had not established how the victim’s injuries were caused or who caused them and that there was “no evidence that the four accused persons or any of them formed an intention in common to assault [the victim] and to assist each other in carrying out such [a] purpose”: Omar, at para. 33.
[89] Cases like Omar and Dunlop are readily distinguished from this one. The victim in this case was larger than any of the accused: see Mitchell Reply factum, at para. 29. Before he was punched by Jocko, the victim was apparently winning the fight with Mitchell. Even after the assault by Jocko, the fight did not stop until the victim was stabbed by Mitchell. Even after the stabbing by Mitchell, it took all three of the accused to get the victim into the bathroom. While they were getting him there, Mearow made sure that there was no interference by ordering everyone else downstairs. After they were in the bathroom with the victim, all three accused remained there or alone upstairs until after the victim was dead. Unlike Omar and Dunlop, and like the other cases to which I have referred, the acts of the applicants in this case ensured that the victim would get to where he died, and that he would stay there until he did. In my view, this pre-offence evidence was sufficient to permit a jury to find that all three accused played an essential, substantial and integral part in the killing of the victim. To borrow the words of the court in Brown, at para. 4, the applicants in this case played the part of either the executioner or the executioner’s henchmen.
[90] In my view, this pre-offence conduct evidence was sufficient to commit the applicants under s. 235(1), without considering the post-offence evidence. Therefore, the applicants have suffered no prejudice even if they were denied the right to be heard with respect to the latter.
ALTERNATE GROUNDS FOR COMMITTING
[91] In Papadopoulos, Durno J. held, at para. 60, that a reviewing judge was not precluded from upholding a committal on a basis other than that chosen by preliminary inquiry judge. In my view, there was another basis for committal in this case.
[92] As I indicated earlier, the preliminary inquiry judge committed the applicants as “co-principals”. By that, I understand him to mean as either perpetrators or as aiders under s. 21(1) of the Code. The operative parts of sections 21(1) and (2) of the Code read:
(1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew … that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
[93] Section 21(1) is aimed at those who participate in the actual offence for which liability is imposed: R. v. Jackson (1991), 1991 CanLII 11739 (ON CA), 68 C.C.C. (3d) 385 (Ont. C.A.), at pp. 421 and 424. This was the section under which the accused was guilty of murder in Harbottle: R. v. Ferrari, 2012 ONCA 399, 295 O.A.C. 9, at para. 65.
[94] Section 21(2), however, is aimed at those who participate in another offence, but who foresee that the murder is a probable consequence of the common design to carry out that other offence: Portillo, at para. 72. It is now clear that liability for first degree murder under s. 231(5) may be based on party liability to murder under s. 21(2). This was the decision of the Court of Appeal in Ferrari, where Rosenberg J.A. wrote on behalf of the Court, at paras. 68-71:
Thus … it is my view that the question of liability for first degree murder under s. 231(5) based upon s. 21(2) is an open one. That said, however, I am satisfied that the two provisions can be combined. While liability for first degree murder under s. 231(5) is premised on active participation in the murder, that liability flows from the participant's acts not any additional mental element. Provided the participant's conduct was a substantial cause of the death and the other elements of s. 231(5) are made out including liability for murder and the underlying crime, such as forcible confinement, the accused can be found guilty of first degree murder.
It is true, as this court pointed out in Jackson, that an accused can be convicted of murder under s. 21(2), even though he did not participate in the act which caused death. In such a case, he could not be convicted of first degree murder under s. 231(5), not because the underlying liability for murder was premised on s. 21(2), but because the Crown was unable to prove that the party's participation was a substantial cause of the death of the victim.
An example can make the point more clearly. As I discuss at greater length below, in Harbottle, Cory J. gave some examples of where an accused could be convicted of first degree murder under s. 231(5). One example was described in the following terms at p. 324:
For example, if one accused with intent to kill locked the victim in a cupboard while the other set fire to that cupboard, then the accused who confined the victim might be found to have caused the death of the victim pursuant to the provisions of s. 214(5) [now s. 231(5)]. [Emphasis added in original.]
In my view, liability under s. 231(5) would also flow if the one accused (the party), while not intending to kill the victim, knew that the principal offender would probably commit murder in carrying out the unlawful purpose, i.e., had the s. 21(2) mens rea for murder. The participation by the party is the same whether the party intended to kill or merely knew that the principal offender would probably commit murder. Further, these acts of participation were a substantial cause of the death of the victim. I find it difficult to conceive that such a person would not have the requisite moral blameworthiness for first degree murder…
[95] In my view, even if it could not be said that the pre-offence evidence in this case permitted an inference that the accused individuals formed an intention in common to kill the victim, that evidence is certainly sufficient to support an inference that they formed an intention in common to confine the victim against his will and is also sufficient to support the inference that they knew that he would probably be killed while so confined. The victim had been in a fight with at least two of the three, had been stabbed by one of them, was bleeding significantly, was kept upstairs while everyone else was sent downstairs, was no longer able to defend himself, and was being taken to a room alone while at least one of the applicants was armed with a knife.
CONCLUSION
[96] There was no denial of natural justice in this case. Even if there was, the applicants suffered no prejudice because the preliminary inquiry judge did not err in considering the post-offence conduct evidence and because a determination that each of the applicants played a significant role in the death of the victim could be reached from the pre-offence evidence alone.
[97] Nor did the preliminary inquiry judge engage in speculation to reach the conclusion he did regarding where the victim was when he suffered the fatal stab wound. It would have been a jurisdictional error for the preliminary inquiry judge to have chosen between competing inferences available on the primary facts established by the evidence.
[98] A committal for first degree murder was the inevitable result, despite the arguments the applicants have now advanced before me.
[99] The applications are, therefore, dismissed.
Ellies J.
Released: August 11, 2014
COURT FILE NO.: 1355-12
DATE: 2014/08/11
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
RONALD ALBERT MITCHELL, ERIC SHANE JOSEPH MEAROW and DYLAN ALBERT JOCKO
Applicants
REASONS FOR DECISION
Ellies J.
Released: August 11, 2014