ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R v Kakegamic, 2015 ONSC 1767
COURT FILE NO.: CR-14-00085-000
DATE: 2015-03-24
B E T W E E N:
Her Majesty the Queen,
Ms. Stacey Hamilton, Ms. Elaine Burton, for the Respondent, Crown
Respondent
- and -
Jeffrey Morris Kakegamic,
Mr. Oliver Abergel, Mr. Michael A. Hargadon, for the Applicant, Mr. Kakegamic
Applicant
HEARD: March 3, 2015,
at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons On Application in the Nature of Certiorari
Introduction
[1] The accused stands charged that he committed second degree murder. After a preliminary hearing, he was committed by Madam Justice Pelletier to stand trial on second degree murder. The accused concedes that there should have been a committal on manslaughter. However, he contends that the preliminary inquiry judge exceeded her jurisdiction when she ordered committal on second degree murder because there was no evidence before her of the requisite mens rea, which is a necessary element in proof of the offence.
[2] The applicant therefore asks that certiorari be granted and the committal of the accused to stand trial on second degree murder be quashed.
[3] The Crown disputes that any error of law was made by the preliminary inquiry judge.
Scope of Review for Certiorari
[4] Certiorari is an extraordinary remedy. The scope of review on a certiorari application is narrow because the reviewing court embarks upon a supervisory function, limited to ensuring that the court below acted within its jurisdiction. It cannot be invoked where the court below committed an error of law or reached a different conclusion than that of the reviewing court. As the Supreme Court of Canada stated in R. v. Russell, 2001 SCC 53, at para. 19:
… certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction.” [citation omitted].
[5] In Russell, the court held that certiorari will issue where the preliminary inquiry judge acted in excess of her jurisdiction. This includes committing for trial where there is no evidence of an essential element of the offence: R. v. Dadshani, [2006] O.J. No. 1857 (S.C.J.), at para. 13. However, the court added at para. 13 of Dadshani that the reviewing court owes great deference to the preliminary inquiry judge’s determination of the sufficiency of evidence:
Provided that the opinion of the preliminary inquiry judge can be supported by, at a minimum, a “scintilla of evidence” touching on each element of the offence charged, there has been no loss of jurisdiction. It is only when there is no evidence on an element of the offence that a reviewing court can vacate the committal.
The Test for Committal at Preliminary Inquiry
[6] The test for committal at preliminary inquiry was settled by the Supreme Court of Canada in United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080. The court held that the preliminary inquiry judge must determine whether there is “any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.”
[7] Following on that test, the court concluded at p. 1080 that the preliminary inquiry judge is “required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.”
[8] The function of the preliminary inquiry judge is not to determine guilt or innocence. Generally, it does not involve weighing evidence or assessing credibility. However, in cases where the Crown has not presented direct evidence as to each element of the offence, but instead relies on circumstantial evidence, the preliminary inquiry judge may embark on “limited weighing” of the evidence to determine whether the circumstantial evidence can support inferences relating to the elements of the offence. In R. v. Arcuri, 2001 SCC 54, at para. 23, the court held that in cases of circumstantial evidence:
…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. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Emphasis in original].
[9] In para. 9 of Dadshani, Mr. Justice Kealey quoted with approval the observations of Mr. Justice Ducharme in R. v. Munoz, [citation omitted] who discussed the function of “limited weighing” in cases of circumstantial evidence:
This limited weighing means that inferences to be drawn from circumstantial evidence need not be “compelling” or even “easily drawn” in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve… If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination. As Major J. put it in Regina v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74 (S.C.C.) at para 18, “where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered.” Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it.
The Facts
[10] The relevant facts for the purpose of this review can be simply stated.
[11] The victim, Mr. Achneepineskum, and others lived in a residence at which drugs and alcohol were regularly consumed. During the weekend in which the victim died, the occupants of the residence and others were involved in an on-going party that featured drug use and excessive alcohol consumption.
[12] One of the residents, Mr. Stevens, went to bed after drinking heavily all weekend. He shared his room with the victim, who slept on the floor beside Mr. Stevens’ bed. Mr. Stevens was awakened in daylight hours by the sound of an intoxicated Mr. Achneepineskum yelling. Mr. Achneepineskum and Mr. Stevens then went to sleep.
[13] Later, Mr. Stevens heard a noise and determined that a third man was in the room. It was daylight. The man was the applicant, Mr. Kakegamic. Mr. Stevens observed the applicant standing bent over top of Mr. Achneepineskum, who was passed out and lying on his stomach. Mr. Kakegamic was leaning on Mr. Achneepineskum’s leg and holding his foot back toward his buttock. Mr. Stevens did not observe a weapon.
[14] Mr. Stevens yelled at the applicant to get out and he did, leaving the door open. Next, Mr. Stevens heard a scuffling noise. He noticed that the applicant had re-entered the room. He was holding a knife with a long blade and a long barbecue fork. The applicant was observed stabbing the knife into the leg of Mr. Achneepineskum. Then the applicant left the room.
[15] Mr. Stevens got up and noted a pool of blood by the inert victim’s leg. It was five minutes before Mr. Stevens located his glasses, checked on the victim and left the bedroom. He noticed the applicant near the living room. He was contradicted in cross-examination about whether the applicant was still in possession of weapons. Mr. Stevens was unsuccessful in rousing the victim’s brother, who was also passed out from the effects of alcohol. He estimated that fifteen to twenty minutes passed between the stabbing and his departure from the residence to call police from a neighbour’s residence. He testified that he did not believe that the victim would die from his wound.
[16] Police attended the scene and Mr. Kakegamic was identified to the officers as he left the residence. The applicant was arrested for assault and placed in a cruiser. When asked whether anyone inside was hurt, the applicant replied, “Fuck him he doesn’t need help.” When the officer asked him again whether anyone else needed help, the applicant answered, “No.”
[17] Mr. Achneepineskum bled to death as a result of his femoral artery being severed by the knife. The forensic pathologist, Dr. Escott, testified at the preliminary inquiry. He testified that the femoral artery is one of the largest arteries in the body. He indicated that an individual suffering a wound of this type would “bleed out” in a matter of minutes to an hour at most.
[18] Dr. Escott also testified that the stab wound entered the victim’s thigh and passed right through it. It was his opinion that such a wound would only be lethal if the artery or vein was cut. He added that it would be difficult, even for a trained physician to locate the femoral artery or vein in the leg and more difficult in low lighting conditions.
Elements of Second Degree Murder
[19] Section 229 of the Criminal Code defines “murder” as follows:
Culpable homicide is murder
(a) where the person who causes the death of a human being
i. means to cause his death, or
ii. means to cause him bodily harm that he knows is likely to cause death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
Positions of the Parties
[20] The applicant argues that the preliminary inquiry judge exceeded her jurisdiction by finding there was some evidence capable of supporting a reasonable inference that Mr. Kakegamic intended to cause death. He submits that in order to commit him to trial on second degree murder, the preliminary inquiry judge had to conclude that he subjectively foresaw that the stab wound would likely cause death. Based on Dr. Escott’s evidence that a stab wound to the thigh would only be lethal if the femoral artery or vein was severed, the defence argues that, because of the difficulty of locating the artery or vein, the applicant could not have had the subjective knowledge that his act of stabbing would be likely to cause Mr. Achneepineskum’s death.
[21] The Crown contends that there was evidence before the preliminary inquiry judge that Mr. Kakegamic intended to cause bodily harm to Mr. Achneepineskum when he stabbed him through the thigh with a large carving knife. The Crown further submits that Mr. Kakegamic was reckless when he walked away, leaving him bleeding, and denying to the police that anyone was in need of help.
Discussion
[22] The Crown relies on recklessness in its prosecution of the applicant on second degree murder. Although the preliminary inquiry judge did not deal with this aspect of the case in her reasons for committal, the circumstantial evidence called by the Crown may give rise to such an inference.
[23] The learned preliminary inquiry judge comprehensively summarized the evidence at the preliminary hearing, including the medical evidence. She next considered the principles for committal at preliminary inquiry, including the limited weighing that applies when inferences may be drawn, as in this case. She was aware that in the case of competing inferences, the court must find in favour of the Crown. She understood and articulated the elements that must be proved to establish the charge of second degree murder under the Criminal Code, as well as the respective positions of the parties.
[24] She also recognized the defence position that because Mr. Kakegamic’s stabbed a non-vital organ, he could not have intended to kill Mr. Achneepineskum, characterizing these circumstances as raising competing inferences.
[25] Madam Justice Pelletier concluded that regardless of the stabbing being to a non-vital organ, a jury could infer that by returning to the room where Achneepineskum slept, armed with a large knife and stabbing him with such force that the knife passed through his thigh, that the necessary mental element was made out.
[26] At para. 43 of her reasons she stated:
Counsel submitted that there was a 10% chance of stabbing lethally, based upon a 15 centimeter diameter upper leg, 2 centimeters of which is the combined femoral artery and vein invisible to the eye. That is a 1 in 10 potential – and one which, among all the other circumstantial factors, in my opinion requires the trier of fact to weigh and draw inferences of fact from an assessment of the totality of the evidence.
[27] This is not a case where there is no evidence about the applicant’s mens rea; rather, the issue is what inferences can be drawn about his mens rea from the evidence.
[28] In my view, the preliminary inquiry judge was correct to leave to the jury inferences of intention arising from the nature of the wound, including the manner and force with which it was inflicted. She considered that the applicant was unarmed on the first occasion when he entered Mr. Achneepineskum’s room and returned with a knife to stab him. She correctly concluded that the competing inferences, including intent or lack of it arising from stabbing a non-vital organ, favour the Crown.
[29] I do not agree that Madam Justice Pelletier exceeded her jurisdiction in committing the applicant to trial on second degree murder. Consequently, the application for certiorari is dismissed.
___”original signed by”
Madam Justice H.M. Pierce
Released: March 24, 2015
CITATION: R v Kakegamic, 2015 ONSC 1767
COURT FILE NO.: CR-14-00085-000
DATE: 2015-03-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen,
Respondent
- and -
Jeffrey Morris Kakegamic,
Applicant
REASONS ON APPLICATION IN THE NATURE OF CERTIORARI
Pierce J.
Released: March 24, 2015
/cs