A NON-PUBLICATION AND NON-BROADCAST ORDER IN THIS PROCEEDING HAS BEEN ISSUED UNDER THE CRIMINAL CODE OF CANADA, SECTION 539
Court File and Parties
Barrie Court File No.: CR-16-159 Date: 2017-05-12 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Applicant – and – Terrence Barrett, Respondent
Counsel: Fred Temple, Assistant Crown Attorney Mark Halfyard, for the Respondent
Heard: April 27, 2017
Ruling on Application for Certiorari with Mandamus in Aid
MULLIGAN J.:
[1] On July 12, 2016, Applegate J. of the Ontario Court of Justice, following a 12 day preliminary inquiry, committed Terrence Barrett to stand trial on the charge of second degree murder. Her Honour also committed the accused to stand trial for aggravated assault. Her Honour declined to commit Mr. Barrett to stand trial on charges of first degree murder.
[2] The Crown now brings an application for certiorari with mandamus in aid on the basis that the preliminary inquiry judge committed several jurisdictional errors. An order is also sought requiring an order that the preliminary inquiry judge commit Mr. Barrett to stand trial for first degree murder.
[3] Her Honour summarized the positions of the Crown and Defence in para. 4 of her detailed reasons:
The Crown argues that, based on the totality of the inferences that a jury could draw from the circumstantial evidence in this case, there is sufficient evidence of planning and deliberation such that I should commit the defendant to stand trial on first degree murder. The defence argues that the inferences the Crown is asking to be drawn from the circumstantial evidence are speculation and conjecture and, as a result, there is insufficient evidence to commit the defendant to stand trial on first degree murder.
[4] Prior to her legal analysis and conclusion, Her Honour reviewed the evidence that was proffered at the preliminary hearing. For the purpose of this application the evidence, as set out in her ruling, can be summarized as follows.
[5] 22 Ross Street, Barrie is a four-storey rooming house, with multiple rooms on each floor. There are two shared bathrooms in the residence. The building was run down, and the walls were paper thin, so that residents could easily hear talking, or arguments from other rooms.
[6] Terrence Barrett lived on the ground floor with his roommate, Aimee Novak. His next-door neighbour was Milan Segota. On February 15, 2015, Mr. Segota was stabbed to death in the hallway near these rooms. The forensic pathologist testified that the cause of death was multiple stab wounds, including two stab wounds to the heart.
[7] The preliminary inquiry evidence indicated that there were issues between Mr. Segota and Mr. Barrett. They did not like each other, and there were at least two prior altercations where Mr. Segota had gotten the upper hand. On one occasion Mr. Barrett reported to the Barrie Police Service on January 20, 2015, that he had been assaulted by Mr. Segota. Some injuries were noted, but he simply wanted the matter reported, and did not request the police to take any further action.
[8] Mr. Barrett and Ms. Novak also had a stormy relationship. She had been assaulted by him previously, and he had served a jail sentence. She enjoyed a good relationship with Mr. Segota, and from time to time he intervened when he heard arguments between Ms. Novak and Mr. Barrett. That evening Ms. Novak and Mr. Barrett had been drinking elsewhere. They returned to their room, and Ms. Novak went upstairs to use the bathroom, accompanied by Mr. Barrett. Mr. Segota came out of his room, and a disturbance ensued. Some residents overheard the discussion. Some thought they heard Mr. Barrett say words to the effect “don’t hit my wife”, or “you hit my wife”. Ms. Novak saw the two fighting. She attempted to intervene, and was stabbed. Mr. Segota fell to the ground, and she remained with him until paramedics arrived. Some of the tenants noticed Mr. Segota lying on the floor bleeding badly. Other tenants saw Mr. Barrett running down the hall. Mr. Segota died of his injuries.
[9] As the preliminary inquiry judge noted in her ruling at paragraph 29:
Ms. Novak initially lied to police telling them that squatters in ski masks had done this and provided details supporting this lie. Ms. Novak indicated that she lied to police because the defendant had just killed a man and she was afraid he would come back. Once she knew the truth that the police had caught the defendant (Mr. Barrett) she told the police the truth.
[10] Mr. Barrett was arrested at 7:00 a.m. on February 16th. Mr. Barrett made some utterances to the police. The police conducted a search of some garbage bins and located some blood stained blue jeans, linked through DNA analysis to Mr. Barrett.
[11] Prior to reaching her conclusions, the preliminary inquiry judge instructed herself as to the jurisdiction of a preliminary inquiry judge under section 548.1 of the Criminal Code.
[12] She also reviewed the planning and deliberation element of the offence of first degree murder. As she noted at paragraphs 46, 47, 48:
To commit on first degree murder, the Crown is required to adduce some evidence of both planning and deliberation on the part of the defendant prior to killing the deceased.
“Planned” has been described by Justice Watt as follows [see Watt’s Manual of Criminal Jury Instructions at p. 691]:
(a) Planned means a calculated scheme that has been carefully thought out; (b) The consequences of the scheme have been weighed, considered and sized up; (c) The plan does not have to be complicated, nor sensible; (d) A planned murder is one committed as a result of a plan previously formulated; and, (e) A murder committed on sudden impulse and without consideration, even with an intention to kill is not a planned murder.
At the same page, Justice Watt defines “deliberate” as follows:
(a) It means considered, carefully thought out, slow in deciding, cautious; (b) Not impulsive, hasty or rash; (c) A person being deliberate has taken the time to weigh the advantages and disadvantages of the act; (d) The deliberation must take place before the murder; and, (e) A murder committed on sudden impulse without prior consideration, even with an intention to kill is not deliberate murder.
[13] In reaching her conclusion, Her Honour considered the legal analysis in the context of the evidence as she heard it at the preliminary hearing. In conclusion she considered the following points:
- The post-offence conduct of Mr. Barrett.
- Lack of evidence as to who brought the knife to the altercation.
- The issue of whether Mr. Barrett’s earlier reporting to the police about an altercation was an anticipated self-defence plan.
- The slicing of the couch that was evident in the Barrett room.
- Mr. Barrett’s utterance with words to the effect “Don’t hit my wife.”
[14] As she stated at para. 55:
When items 1, 3 and 4 above are removed what remains as potentially relevant evidence is the animus between the parties, the inference that the defendant had the knife with him, the manner of killing – 22 stab wounds to vital parts of the body executed with sufficient force to cause 10 fractured ribs, and the inference that the defendant lied about the deceased hitting Ms. Novak.
[15] As part of her analysis, Her Honour stated at para. 57:
The evidence, including the 22 stab wounds, points more to a murder committed on impulse in the course of a physical exchange which escalated.
[16] As Her Honour concluded at paragraph 60:
In my view the totality of the evidence would not allow a jury to conclude that there was a formulated plan or that the defendant’s conduct bore the characteristics of a calculated scheme which was thought out and contemplated. Further, a jury would be unable to conclude that there was any deliberation such as the defendant being slow and cautious in deciding and not hasty or rash.
The Crown’s Position
[17] The Crown argues that a Superior Court judge in these circumstances can intervene when a preliminary inquiry judge exceeds her jurisdiction, or, fails to exercise her jurisdiction. The Crown sets out a number of potential areas where a preliminary judge could lose jurisdiction. They can be summarized as follows:
- applying an incorrect test for committal, usurping the function of the judge or jury
- engaging in irrelevant considerations instead of determining the sufficiency of the evidence
- failure to consider the whole of the evidence
- considering the evidence in isolated segments rather than as a whole
- considering circumstantial evidence in isolation without regard to the context of the whole of the evidence
- engaging in the weighing of competing inferences
- choosing from competing or alternative reasonable inferences
- determining whether a reasonable inference is consistent with guilt and inconsistent with any other rational explanation.
[18] The Crown acknowledges that aspects of this case are based on circumstantial evidence, and under those circumstances, a preliminary inquiry judge is required to engage in some limited weighing of the evidence. Under those circumstances, if there are different versions of evidence, the Crown is entitled to rely on the version that is most favourable to the Crown’s case.
[19] The Crown submits that where an element of the offence is “planning and deliberation,” the following facts may warrant consideration:
- the conduct of the accused after the fact
- the evidence of past animus or motive
- the suddenness and brutality of an attack
- the commission of an offence in the presence of a person who may be aligned with the accused
[20] With respect to the specific aspects of the decision of the preliminary inquiry judge, the Crown submits that Her Honour made the following seven errors:
- By weighing the post-offence conduct of the accused.
- By not inferring that the accused’s prior report to the police that he had been assaulted was some evidence that he was planting the seed for a potential self-defence plan.
- By not considering an inference that Mr. Barrett made slice marks on the couch, an inference that could be drawn as favourable to the Crown.
- By not considering Mr. Barrett’s utterance in the hallway that the deceased had hit his girlfriend. This was considered in a piecemeal fashion and she favoured the inference most favourable to the defence.
- By failing to consider inferences that warranted committal on planning and deliberation, including: (i) Animus; (ii) that the accused brought the knife to the altercation; (iii) manner of killing, 22 stab wounds; and, (iv) the accused’s lie when he said “don’t hit my wife”:
- By failing to consider how the fight started. Although there was no direct evidence, there was substantial circumstantial evidence available to draw reasonable inferences.
- By preferring defence favourable inferences when she stated “the evidence including the 22 stab wounds, points more to a murder committed on impulse in the course of a physical exchange which escalated”.
[21] The Crown concluded its submissions by indicating that there was sufficient evidence and inferences available to warrant a committal for first degree murder.
Position of the Defence
[22] The position of the defence is that the preliminary inquiry judge committed no jurisdictional error. Further, her findings in terms of limited weighing, and a consideration of reasonable inferences are not subject to review by way of certiorari.
[23] The defence responds to the Crown’s alleged errors as follows:
- Error #1: The post-offence conduct. The defence submits that the post-offence conduct has no probative value in determining the level of culpability of an accused as to whether the evidence established that the killing was planned and deliberate.
- Error #2: The earlier police report about a prior altercation. The defence submitted that there was an inferential gap in making an inference that the accused’s activity was to create a self-defence plan. A determination that the proposed inference was untenable was not a jurisdictional error, and therefore not reviewable.
- Error #3: Slice marks on the couch. The defence agrees with the preliminary inquiry judge’s findings that the inference that the accused practiced by slicing the couch, lacked an evidentiary foundation. The defence further submits that the failure to draw proposed inference, not available on the evidence, does not indicate that the issue was looked at in isolation.
- Error #4: Barrett’s lie. The defence submits that the accused words to the effect “don’t hit my wife” are not indicative of whether or not the murder was planned and deliberate. As Her Honour stated in her reasons “this inference alone is insufficient to support planning and deliberation. It would be speculative to find that this was a previously contrived utterance designed to create an impression on listeners that the defendant was acting in self-defence.”
- Error #5: Inferences the judge considered warranted committal. The defence submits that it is wrong for a reviewing court to isolate a single passage, or single sentence within a judgment and pronounce upon its meaning. The impugned passage is “That the evidence, including the 22 stab wounds points more to a murder committed on impulse in the course of a physical exchange that escalated.” The Defence submits that the only inference available was that the attack was impulsive as opposed to planned and deliberate and therefore this is not a case of choosing between competing inferences, but of certain inferences not being available on the evidence.
- Error #6: The ambush attack. The defence submits that there is no evidence that the accused knew that he would see the deceased that day, nor that he in any way bated the deceased to exit the apartment for the purpose of an act. Therefore, there is no basis to support an inference that what occurred was an “ambush attack”.
- Error #7: Lead up to the fatal altercation. This again refers to the preliminary inquiry judge’s reference to the following statement: “The evidence including the 22 stab wounds points more to a murder committed on impulse in the course of a physical exchange which escalated.” The defence submits that it is wrong for a reviewing court to isolate a single passage or a single sentence within a judgment and pronounced upon its meaning. In the circumstances here, the only available inference was that this was an impulsive attack, not one that was planned and deliberated.
Legal Analysis
[24] In this case, the preliminary inquiry judge committed the accused to stand trial on the charge of second degree murder but declined to commit him to stand trial for first degree murder.
[25] The preliminary inquiry is an important part of the criminal justice system. Section 548(1) of the Criminal Code provides as follows:
548.1 When all of the evidence has been taken by the justice, he shall:
(a) If in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) Discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
[26] With respect to planning and deliberation, a necessary element of first degree murder, the preliminary inquiry judge concluded:
In my view, the totality of the evidence would not allow a jury to conclude that there was a formulated plan or that the defendant’s conduct bore the characteristics of a calculated scheme which was thought out and contemplated. Further, a jury would be unable to conclude that there was any deliberation such as the defendant being slow and cautious in deciding and not hasty or rash.
[27] In R. v. Nygaard, [1989] 2 S.C.R. 1074, the Supreme Court of Canada reviewed the meaning of planning and deliberation at para. 18:
What then is the meaning of planned and deliberate and can that classification be applied to the requisite intents set forth in s. 212(a)(ii)? It has been held that “planned” means that a scheme was conceived and carefully thought out before it was carried out and “deliberate” means considered, not impulsive. A classic instruction to a jury as to the meaning of “planned and deliberate” was given by Gale J. as he then was, in R. v. Widdifield (1961), Ontario Supreme Court, unreported, as excerpted in 6 Crim. L.Q. 152 at p. 153:
I think that in the Code, “planned” is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.
The important element, it seems to me, so far as time is concerned, is the time involved developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.
As far as the word “deliberate” is concerned, I think that the Code means that it should also carry its natural meaning of “considered,” “not impulsive,” “slow in deciding,” “cautions,” implying that the accused must take time to weight the advantages and disadvantages of his intended action.
[28] The role of a preliminary inquiry judge with respect to the test for committal was summarized by Ducharme J. in R. v. Munoz, 2006 ONSC 3269, [2006] O.J. No. 446:
One of the purposes of the preliminary inquiry is to determine whether there is sufficient evidence to commit an accused person to trial. Section 548(1) of the Criminal Code, R.S.C. 1985, c. C-46, requires the preliminary inquiry judge to order the accused to stand trial, “If in his opinion there is sufficient evidence” and to discharge the accused, “if in his opinion on the whole of the evidence no sufficient case is made out.” Thus, the question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.” Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction.”
In order to commit an accused for trial on a charge, a preliminary inquiry justice must find evidence of each essential element of the offence, which, if believed by a properly instructed jury, could result in a conviction. The preliminary hearing judge may not assess the credibility of witnesses or weigh the evidence for competing inferences in determining whether there is sufficient evidence for committal. The test is the same whether the Crown is relying on direct evidence or circumstantial evidence. However, in each of these circumstances the process engaged in by the preliminary inquiry must be different.
[29] In the case at bar the Crown points out examples of circumstantial evidence which should have entitled the preliminary inquiry judge to make reasonable inferences and commit the accused for first degree murder.
[30] In R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54, the Supreme Court of Canada considered the issue of circumstantial evidence in an accused person’s certiorari application involving a first degree murder charge. As the Court stated at para. 23:
The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed…This weighing, however, is limited. A judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw actual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Citations omitted.]
[31] In R. v. Jackson, 2016 ONCA 736, [2016] O.J. No. 6777, the Ontario Court of Appeal reviewed an order quashing the committal of an accused on a charge of second degree murder where circumstantial evidence was discussed. As the court noted at paras. 6 and 8:
If the evidence relied on by the Crown is circumstantial, the preliminary inquiry judge must weigh the evidence in a limited sense to determine whether the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence.
If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.
[32] The Court continued at para. 11:
The Chief Justice makes it clear that evidence at a preliminary inquiry that is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, requires that the accused be committed for trial.
[33] The drawing of inferences was subject to discussion in Munoz as Ducharme J. stated at para. 24:
A good starting point for any discussion of inference drawing is a definition offered by Justice Watt:
An inference is a deduction of fact which may logically and reasonably be drawn from another fact or a group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances.
Equally important is Justice Watt’s admonition that, “the boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a very difficult one to locate.
[34] Circumstantial evidence was recently discussed by the Supreme Court of Canada in R. v. Villaroman, [2016] 1 S.C.R. 23, 2016 SCC 23. As Cromwell J. stated at paras. 38-43:
Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically in light of human experience, is reasonably capable of supporting and inference other than that the accused is guilty.
[35] In R. v. Deschamplain, [2004] 3 S.C.R. 601, 2004 SCC 76, the Supreme Court of Canada reviewed the jurisdiction of a reviewing court with respect to a certiorari application concerning the decision of a preliminary inquiry judge. As the Court stated at para. 23:
[23] The jurisprudence of this Court leaves no doubt that a preliminary inquiry judge commits a jurisdictional error by committing an accused for trial under s. 548(1) (a) when an essential element of the offence is not made out. Conversely, it is not a jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to subsequently discharge the accused under s. 548(1) (b). In that situation, it would be improper for a reviewing court to intervene merely because the preliminary inquiry judge’s conclusion on sufficiency differs from that which the reviewing court would have reached. It is a jurisdictional error, however, for a preliminary inquiry judge to act arbitrarily. [Citations omitted.]
[36] In R. v. Turner, 2012 ONCA 570, [2012] O.J. No. 4088 the Ontario Court of Appeal provided the following guidance for reviewing courts on an application to quash. As the court stated at para. 18:
The jurisdiction of a reviewing court on an application to quash the decision of a preliminary inquiry judge is very limited. In R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, McLachlin C.J. said at para. 19:
This scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today’s certiorari “runs largely to jurisdictional review of surveillance by a superior court of statutory tribunals, the term “jurisdiction” being given its narrow or technical sense…Thus review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather, certiorari permits review only where it is alleged that the tribunal has acted in excess of its statutory jurisdiction or has acted in breach of the principles of natural justice which by the authorities is taken to be in excess of jurisdiction. [Citations omitted.]
[37] In R. v. Muir, 2008 ONSC 290, [2008] O.J. No. 452, Croll J. reviewed an application by the Crown to quash the discharge of an accused following the preliminary inquiry. Her Honour reviewed the inferences drawn by the preliminary inquiry judge and noted at paras. 16-17:
Although I do not agree with these conclusions as to their inferences to be drawn from the evidence, they are not reviewable, as it is clearly within the jurisdiction of the preliminary inquiry judge to assess the evidence, and make his decision on the sufficiency of that evidence. This has been succinctly described as the zone in which the judge has the right to be wrong…he [the preliminary inquiry judge] concluded that the circumstantial evidence was insufficient to reasonably ground such inferences, which does not constitute a reviewable error.
[38] In R. v. Allison, 2016 ONSC 2446, [2016] O.J. No. 2446, Trotter J. noted at para. 16:
In Wilson at paragraph 19, the court emphasized the “very limited” scope of certiorari in this context noting that it is not the role of a reviewing judge to simply “redo the limited weighing function”. Instead a reviewing judge may only intervene if the preliminary inquiry judge fails to exercise his/her statutory jurisdiction. [Citations omitted.]
Conclusion
[39] In my view, the preliminary inquiry judge fairly outlined the position of the Crown and Defence in her decision.
[40] She then conducted a legal analysis and instructed herself as to the principles she was required to consider with respect to a charge of planning and deliberation which is the element of the offence required to commit for first degree murder. In her conclusion the preliminary inquiry judge conducted a limited weighing of five aspects of the circumstantial evidence as she was required to do. Excerpts from these five points at para. 54 illustrate her consideration of them.
- Nothing can be inferred from the post-defence conduct in regard to whether the murder was first or second degree murder.
- There is no evidence as to who brought the knife to the altercation…The inference most favourable to the Crown would be that the defendant brought that knife and I find that is a reasonable inference on the evidence before me.
- Inferring the preparation of a self-defence plan by reporting being assaulted by the deceased in January 2015 cannot be reasonably and logically drawn on the evidence before me…A reasonably instructed jury would need more evidence to bridge this inferential gap.
- The inference of the defendant practicing by slicing his couch lacks and evidentiary foundation. There is sufficient evidence to infer that the defendant lied when he uttered the words “don’t hit my wife” or “you hit my wife”…This inference alone is insufficient to support planning and deliberation. It would be speculative to find that this was a previously contrived utterance designed to create an impression on listeners that the defendant was acting in self-defence.
- The inference [the lie] is insufficient to support planning and deliberation and would be speculative…
[41] The preliminary inquiry judge then considered the potentially relevant evidence of animus between the parties and the particular injuries to the victim causing his death. However, she reminded herself “the manner of killing must be looked at in the context of the entire evidence pertaining to the altercation…”
[42] In my view, the preliminary inquiry judge considered the evidence as a whole in making her determination. In doing so she reviewed various pieces of evidence to determine if there was a logical inference to support planning and deliberation or mere speculation. She was entitled to conduct a limited weighing of the circumstantial evidence. Her conclusion that the circumstantial evidence was insufficient to satisfy the element of “planning and deliberation” is entitled to deference. As the Supreme Court of Canada said in R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 19, “The scope of review on certiorari is very limited.” I do not find that the preliminary inquiry judge exceeded her assigned statutory jurisdiction.
[43] The Crown’s application for a certiorari with mandamus in aid is dismissed.