Court File and Parties

Court File No.: M74/13
Date: 20140213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Andy Barrientos and Jeremy Sirur-Yee

BEFORE: Molloy J.

COUNSEL:
R. Nathanson and J. Callaghan, for the Crown

A. Schreck and C. Suter, for Andy Barrientos

S. Stauffer, for Jeremy Sirur-Yee

HEARD: February 10, 2014

Endorsement

[1] Andy Barrientos and Jeremy Sirur-Yee were charged with second degree murder in respect of the shooting death of Pamela Ariza (“Chico”) on August 20, 2011. The preliminary hearing proceeded before the Honourable Justice Heather McArthur on various dates between August and November 2012. At the conclusion of the evidence, Crown counsel advised that he would be seeking committal on first degree murder. For written reasons issued on February 21, 2013, the preliminary hearing judge committed both defendants to stand trial for first degree murder. Both defendants now seek an order by way of certiorari quashing the committal for first degree murder. They do not challenge that there was evidence upon which a committal for second degree murder could be based. However, they submit that the hearing judge exceeded her jurisdiction by finding there was any evidence upon which a properly instructed jury could find there had been planning and deliberation and that the committal for first degree murder must therefore be quashed. In particular, they argue that the hearing judge erred in her analysis of the circumstantial evidence and by drawing inferences that could not be rationally drawn on the facts and which amounted to speculation.

[2] Certiorari is only available to quash a committal for trial where the preliminary hearing judge exceeded his or her jurisdiction. I accept the defence submission that a preliminary hearing judge exceeds her jurisdiction if she commits an accused for trial where there is no evidence of an essential element of the offence, such as a requirement of planning and deliberation for first degree murder.[^1] I also accept that it is jurisdictional error to commit and accused for trial based on inferences from the evidence that cannot reasonably be drawn.[^2] However, I find no such jurisdictional error by the hearing judge in this case.

[3] In a thorough and thoughtful decision, the hearing judge reviewed the extensive evidence called at the preliminary hearing. She correctly instructed herself on the law to be applied in determining whether to order committal and on which charge. She correctly held that there was no direct evidence of planning and deliberation and that a conviction for first degree murder could only be based on the drawing of inferences from circumstantial evidence. She then correctly identified the correct test to be applied by a preliminary hearing judge in considering a Crown case based on circumstantial evidence.

[4] In particular, the hearing judge was alive to the distinction between impermissible speculation as opposed to the drawing of rational inferences from proven facts. She also recognized that where more than one inference can be drawn, she is required to draw the inference that favours the Crown.[^3] I see no legal error in the decision.

[5] The hearing judge concluded that it was possible for a jury to draw reasonable inferences from the evidence that would satisfy the requirement of planning and deliberation. In coming to that conclusion, she carefully reviewed and analyzed the evidence and the positions taken by defence counsel. She acknowledged that some of the inference may be weak and perhaps not compelling. However, she correctly found that this was not the test.[^4] In my view, the reasoning of the hearing judge is impeccable. The inference supporting planning and deliberation are not the strongest ones available, but they are reasonable and do not cross the line into speculation.

[6] It is not the strength of any individual factual inference that must be considered, but rather the totality of the evidence and the inferences that may be drawn based on all the evidence.[^5] When the evidence is looked at as a whole (including the events at the party, the circumstances in which the gun was taken from Mr. Barak, and the manner in which the shooting of Chico occurred immediately thereafter), it would be possible for a properly instructed jury, acting reasonably, to reach a verdict of first degree murder.

[7] I see no basis for interfering with the decision of the preliminary hearing judge. The applications are dismissed.

MOLLOY J.

Date: February 13, 2014

[^1]: Nygard and Schimens, 1989 6 (SCC), [1989] S.C.J. No. 110; R. v. Papadopoulos, [2004] O.J. No. 2766 at paras. 70-74

[^2]: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at paras 19-24; R. v. Brown, 2012 ONSC 6565; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635.

[^3]: Reasons at paras 7-11; R. v. Munoz (2006), 2006 3269 (ON SC), 86 O.R. (3d) 134, 205 C.C.C. (3d) 70, 38 C.R. (6th) 376 (S.C.J.)

[^4]: Reasons, at paras 27-40; R. v. G.W., 1996 427 (ON CA), [1996] O.J. No. 3075 (C.A.); R. v. Montour, R. v. Katwaru, 2001 24112 (ON CA), [2001] O.J. No. 209 (C.A.)

[^5]: R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339