CITATION: R. v. McIntosh, 2016 ONSC 7250
COURT FILE NO.: 16\7-227-00M0
DATE: 20161121
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
– and –
RODERICK MCINTOSH
Applicant
Robert Wright
for the Respondent
Michael Dineen
for the Applicant
HEARD: November 7, 2016
THEN J.:
[1] The applicant was charged with the first degree murder of Brent Gartner. At the conclusion of the preliminary inquiry the applicant conceded that a committal for second degree murder based on the evidence adduced was appropriate. The preliminary inquiry judge committed the applicant on the charge of first degree murder based on his view that there was evidence of planning and deliberation to murder the deceased. The applicant contends that there is no such evidence and seeks review by way of certiorari and an order quashing the committal for first degree murder and remitting the matter back to the preliminary inquiry judge to commit the applicant for trial on a charge of second degree murder.
The facts
[2] The applicant lived with James Hachey at 423 Yonge St. Cell phone records indicate a number of conversations between the applicant and deceased’s phone on the afternoon of January 10, 2015, and two days earlier on January 8, 2015. Mr. Hachey testified that on January 10, 2015, the applicant told him he was going to the deceased’s apartment to pick up “200 and something dollars” that were owed to the applicant. According to Mr. Hachey the applicant and the deceased were friends. The applicant asked Mr. Hachey to stay in contact with him while he was gone. This request caused Mr. Hachey to worry as he had not been asked to do this before. Mr. Hachey testified that he knew the applicant owned a small “lockblade” knife but did not know if he habitually carried it.
[3] The deceased lived at 330 Jarvis Street, apartment 808, and had a large collection of ceremonial weapons and masks hanging on his apartment walls. James Caswell was a close friend of the deceased who lived in the apartment next to the deceased with an adjoining wall. He had dinner with the deceased every night.
[4] Video surveillance at the entrance to the deceased’s apartment house showed that the applicant arrived at the apartment at the same time as David Allen shortly before 6:00 pm. Mr. Allen who was visiting a friend attempted several times to contact his friend in order to secure entry. During this interval Mr. Allen observed that the applicant received phone calls that apparently agitated him and that he used the word “fucking faggot” and said into the phone “I swear to God I’m going to knife you”.
[5] The phone records indicate that the applicant received seven phone calls from Mr. Hachey but from no one else during this period of time. Shortly after the phone calls the deceased came downstairs to let the applicant in. According to Mr. Allen the applicant seemed to calm down. Mr. Allen testified that the deceased seemed cheerful and happy to see the applicant and both acted as though they were friends.
[6] Mr. Caswell testified that he had confirmed with the deceased by phone at around 6:00 pm that they would have dinner together at 6:30 pm. Mr. Hachey testified that he called the applicant at 6:28 pm. The applicant confirmed that the everything was okay and that he too would be home for dinner. Mr. Caswell also testified that approximately 10 to 15 minutes after he spoke to the deceased he heard a loud bang against the wall he shared with the deceased’s apartment and continued to hear a lot of other noise for the next few minutes.
[7] Mr. Caswell responded by running into the hallway where he observed blood at the doorway of apartment 808 and a man repeatedly pushing the elevator button. Mr. Caswell entered the apartment of his friend, Mr. Gartner, and observed him slumped against the wall bleeding heavily and unresponsive. He also observed that the apartment was in disarray as furniture was overturned and a sword and a Samburu war club from the deceased collection lay on the floor. Mr. Caswell called the police.
[8] The police followed a trail of blood from the apartment to the elevator and from the elevator out of the building into the street. The applicant had collapsed in the street near the deceased’s apartment building. Shortly before the police and paramedics arrived the applicant called Mr. Hachey and told him the deceased had “freaked out” and stabbed him. The paramedics bandaged a large cut on the applicant’s arm and observed that he was in pain, drifting in and out of consciousness and had difficulty speaking and breathing. The attending paramedic believed that in addition to the cut the applicant had a collapsed lung and a fractured arm. When the applicant’s clothing was cut for treatment purposes a “blockblade” knife fell out from the clothing.
[9] The autopsy determined that the cause of death was sharp force injuries to the deceased’s chest and leg. The deceased had a deep slash to the back of his right leg which severed an artery and may have been fatal on its own and the stab wound below the left nipple may have contributed to the death. As well there were cuts to the deceased’s face and to the base of his penis. There were no defensive wounds to his hands.
reasons for committal for first degree murder
[10] There was no DNA found on the deceased’s body other than his own. A DNA profile from the sword, war club and lockblade knife could not be excluded as coming from the deceased. A DNA profile taken from the blood in the elevator and from the handle of the lockblade knife could not be excluded as coming from the applicant.
[11] In his formal written reasons the preliminary inquiry stated the following in committing the applicant for trial on the charge of first degree murder based on planning and deliberation:
[3] At this Preliminary Hearing, there was no issue regarding committal for trial on a charge of Murder. The only issue was whether there was some evidence of planning and deliberation to satisfy committal on First Degree Murder as charged, or not. If not, I should commit the defendant for trial on Second Degree Murder.
[4] Since there was no direct evidence of a plan to murder, this Court is required to perform a limited weighing of the evidence to assess whether it is capable of supporting the inference that the Crown will ask the jury to draw (i.e. planning and deliberation). At paragraph 21 of R. v: Munoz, 2006 CanLII 3269 (ON SC), [2006] O.J. No. 446, Ducharme, J. writes:
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. A preliminary inquiry judge commits jurisdictional error where he weighs competing inferences or chooses among them. If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination.
Circumstantial Evidence of Planning and Deliberation
[5] Mr. Hachey testified that Mr. Mcintosh and Mr. Gartner had known each other for years and were good friends to the best of his knowledge. Although not a friend, himself, Mr. Hachey had been to Mr. Gartner's apartment (he called him Dave) before and noticed the artifacts, masks, and weapons displayed on the wall. Mr. Hachey was with the defendant before he left their apartment to see the deceased. He testified as follows:
• The defendant left for the purpose of getting some money (over $200) from the deceased, and told Hachey he was going to "deal with something".
• The defendant told Mr. Hachey to keep in touch and to keep calling him. Since the defendant had never done that before, Hachey was worried about the defendant.
• The defendant was known by him to have a "little lock blade" knife. However, Hachey did not see the defendant with any knife that day.
[6] Cell phone records (Exhibit 9 on consent) of the defendant's phone show that Mr. Hachey did indeed "keep in touch". Between 5:42 p.m. and 6:37 p.m. Hachey called Mclntosh 37 times. Those same cell phone records show that Mr. Gartner phoned Mr. Mclntosh at 8:41 p.m. on January 8 and that Mcintosh phoned Gartner at 2:43 a.m. on January 10. There are then seven calls between Gartner and Mcintosh on the afternoon of January 10. The last one was at 5:30 p.m. - shortly before the defendant left for the deceased's apartment (he is recorded on surveillance at the lobby door around 20 minutes later).
[7] When the defendant is discovered in distress, bleeding heavily, on Carlton Street around 6:35p.m., a knife was found by P.C. Ito lying on his upper body area. That knife was seized. It was a small black lock knife. The blood on its tip was identified by DNA analysis to be Brent Gartner's blood. The crime scene at 330 Jarvis Street contained at least three weapons stained with blood. The knife found with the defendant is the only weapon taken from the apartment building.
Conclusion
[8] In my view, while not the only, or even most compelling, inference to be drawn, the evidence above provides a basis that a reasonable jury could conclude the defendant had the time and motive to construct a plan, think about it, and eventually carry it out at 330 Jarvis that afternoon. Accordingly, the defendant must be committed for trial on a charge of First Degree Murder.
[12] In his oral reasons, the preliminary inquiry judge referred to the evidence of Mr. Allen who overheard the applicant state “fucking faggot” and “I’m going to knife you” into his cell phone prior to being let into the apartment house by the deceased. However, it appears clear from the cell phone records that these remarks were directed at Mr. Hachey and not at the deceased. In any event, these remarks are quite properly, in my view, not relied upon by the preliminary inquiry judge as evidence of planning and deliberation in his formal reasons for committal. In my view these remarks do not constitute evidence of planning and deliberation on the part of the applicant.
analysis
[13] The parties are in agreement that only if there was no evidence from which the preliminary inquiry judge could reasonably infer that there was planning and deliberation to kill the deceased that the preliminary inquiry judge could be said to have committed jurisdictional error (See R. v. Jackson 2016 ONCA 736 at para. 11, 16, 21). I agree.
[14] The position of the applicant is that there is no evidence from which an inference that the applicant planned and deliberated the killing of the deceased if the debt was not repaid. It would require speculation and conjecture about what happened in the deceased’s apartment to conclude that the appellant carried out a planned killing particularly in view of:
i) a complete absence of evidence of how or why the fatal altercation began;
ii) the injuries to both the applicant and the deceased inflicted by the deceased’s weapons indicating that the deceased’s death resulted from a struggle rather than a surprise attack; and,
iii) the amiable entry of the applicant into the apartment and the long period of time the applicant was present in the apartment before the fight began.
[15] The position of the Crown is that the preliminary inquiry judge was entitled to conclude that there was an evidentiary basis after a limited weighing of all of the evidence from which to infer that the element of planning and deliberation had been made out in order to warrant a committal for first degree murder.
[16] In my view, the appellant’s application for certiorari must be granted as I agree with the applicant that the preliminary inquiry judge in assessing the sufficiency of evidence fell into jurisdictional error in committing the applicant for trial or a charge of first degree murder as there was no evidentiary basis to support the element of planning and deliberation. While it is available for a preliminary inquiry judge to engage in the limited weighing of evidence to determine if the essential elements of the offence have been made out it is not permissible to engage in speculation or conjecture which in my view is what occurred in this case. (See R. v. Arcurr (2001), 2001 SCC 54, 157 C.C.C. 21 (S.C.C.) at paras. 22-23, 30, Re Jackson 2016 ONCA 738 at paragraphs 11, 16, United States of America v. Huynh (2005) 2005 CanLII 34563 (ON CA), 200 C.C.C. 305 C.A. at paragraphs 5-7.
[17] It is useful to refer to the decision of the Court of Appeal R. v. Barnett, McLellan and Mullen (2013) ONCA 179 in support of my conclusion that there is no evidence of planning and deliberation in this case as the facts of both cases are generally compatible if not arguably more egregious in R. v. Barnett et al., supra. In Barnett, supra, the Court outlines the facts as follows:
[2] The three respondents drove from Toronto to Ottawa, and broke into a residence that Swan shared with others. McLellan and Barnett were armed with loaded handguns; Mullen was armed with a baseball bat. They went directly to Swan's bedroom where Swan was watching TV with his girlfriend, Scott, and a friend, Tanguay. Scott testified that the three armed men blocked the exit to the bedroom, ordered the occupants to get on the ground on their knees, ordered them to get rid of their cell phones, and demanded "where's the weed?" and "where's the money?" Tanguay testified that the armed men kept asking "where's the money, where's the gun? You know where the shit is, where is everything, what’s going on?" Scott testified that McLellan said to Swan "I know you're the drug dealer, you know where it is."
[3] Upon Swan responding, either "I have nothing" in Tanguay's version or "I don't know" in Scott's, McLellan shot him. Scott said McLellan shot Swan after Swan "went down to do something, and I'm assuming it was to get his phone which was in front of him ..."
[18] In that case based on these facts the preliminary inquiry judge held that there was no evidence of any plan to kill the victim. The Court of Appeal agreed that there was no evidence of planning and deliberation holding:
[10] In our view the Crown misreads the preliminary inquiry judge's comment that the evidence was suggestive of an impulsive murder. Other passages in the judge's reasons make clear that he did not weigh competing inferences but rather found there was no evidence of any preconceived plan to commit murder. He said "The Crown submits there was a preconceived plan to kill Michael Swan, but after reviewing all of the evidence presented at this preliminary hearing, I find that there is no evidence of any plan to kill the victim." He also said:
I have considered all of the evidence presented at this preliminary inquiry and there is no available inference that the three accused had a plan to kill Mr. Swan prior to entering his residence, or a plan to kill if necessary if he did not immediately provide them with the information they were seeking. For a court to draw such an inference based on the available evidence, would amount to that type of speculation and conjecture that is clearly not permissible even at the preliminary inquiry stage.
[11] We would not give effect to this ground of appeal. The preliminary inquiry judge found there was no available inference that would support committal for first degree murder. The evidence that was available was "suggestive of an impulsive murder" and that is why the judge committed the respondents on a charge of second degree murder. The reviewing judge did not err in upholding this part of the preliminary judge's decision.
[19] It is clear from R. v. Barnett et al., supra, that a plan to rob a drug dealer of drugs and money while heavily armed with firearms does not by itself constitute a plan or indeed even motive to kill if the person does not comply. Moreover, while the circumstances in which the killing occurred may, in the context of all of the evidence, give rise to an inference of a plan to kill, the circumstances in R. v. Barnett did not. Similarly, in the case at bar, the plan of the applicant to collect a debt of approximately $200 while armed with a small “lockblade” knife cannot of itself constitute evidence of a plan to kill even if some resistance on the part of the deceased is anticipated. Moreover, there is an utter lack of evidence as to how or why the struggle began after the applicant had been in the deceased’s apartment for half an hour after a friendly entry into the apartment. In my view there is no evidence whatever of planning and deliberation to justify a committal for first degree murder. The provincial inquiry judge committed jurisdictional error in doing so.
[20] In my view, there is an abundance of evidence to warrant a committal for second degree murder and as stated earlier the propriety of a committal on a charge of second degree murder is conceded.
[21] The application for certiorari is granted, the committal on the charge of first degree murder is quashed and the matter is remitted to the preliminary inquiry judge to commit the applicant for trial on the charge of second degree murder.
THEN J.
RELEASED: November 21, 2016
CITATION: R. v. McIntosh, 2016 ONSC 7250
COURT FILE NO.: 16\7-227-00M0
DATE: 20161121
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
– and –
RODERICK MCINTOSH
Applicant
REASONS FOR JUDGMENT
THEN J.
RELEASED: November 21, 2016