Court File and Parties
Court File No.: CR-16-00003318 Date: 2017-05-18 Corrigenda: 2019-03-06 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Katrina Vanderwyk, Defendant
Counsel: Melissa Montemurro, for the Crown Jennifer A.Y. Trehearne and Taufiq Hashmani, for the Defendant
Heard: May 8, 2017
Ruling on Application
The text of the original ruling has been corrected with the text of the corrigendum (released today’s date).
1This is an application for an order of certiorari quashing a committal to stand trial on a count of attempted murder. For the reasons that follow, I am satisfied that the evidence before the preliminary inquiry justice meets the “scintilla of evidence” standard of jurisdictional review and as a result I dismiss the application.
2The Applicant was charged along with a co-accused, Nikita Forbes, with a number of offences stemming from an armed robbery that occurred at the Asia Gold jewellery store on August 1, 2014. Following an 11 day preliminary inquiry before Justice J.N. Olver, the Applicant and her co-accused were committed to stand trial on 14 of 16 counts in the information. Of relevance to this application, the co-accused was committed to stand trial on two counts of attempt murder. The Applicant was discharged on one of those counts and now argues that the committal in relation to the second count is unsupported by any evidence. The Applicant does not challenge the remaining counts on which she was committed to stand trial, nor does the co-accused challenge any of her committals.
Legal Framework
3In R. v. Jeffrey, 2015 ONSC 7674 at paras. 9-12, Pomerance J. provides the following succinct and helpful summary of the legal framework to be applied on a certiorari application seeking the quashing of a committal to stand trial:
It is well settled that the scope of review of a committal (or discharge) flowing from a preliminary inquiry is extremely narrow. In this context, review is strictly limited to errors of a jurisdictional nature. Errors of law (as distinct from errors of jurisdiction) are immune from challenge. The threshold for a finding of jurisdictional error is not easily met. As was observed by Laskin C.J.C. in Forsythe v. The Queen (1980), 53 C.C.C. (3d) 225 (S.C.C.), “the situations in which there can be a loss of jurisdiction in the course of a preliminary inquiry are few indeed”.
Jurisdictional error will arise where a preliminary inquiry justice commits an accused to stand trial in the absence of any evidence on an essential element of the offence. Where the issue is sufficiency of evidence, the determination of the preliminary inquiry justice “is entitled to the greatest deference.” R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 (S.C.C.). The test on review is whether there is some evidence upon which the committing justice could conclude that the test has been satisfied. So long as there is a scintilla of evidence on each element of the offence, the committal is jurisdictionally sound. The reviewing court is not empowered to substitute its own view for that of the committing justice.
Where there is direct evidence on each of the essential elements, the preliminary inquiry justice must commit. “It remains only for the jury to decide who it chooses to believe and what evidence it decides to accept or reject”. R. v. Charemski (1998), 123 C.C.C. (3d) 225 (S.C.C.) at para. 22. Where the evidence is circumstantial, the justice must engage in some weighing of the evidence, but only to a very limited extent. As described in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at para. 23:
The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. 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.
In other words, the preliminary inquiry is not the proper forum for weighing competing inferences or for choosing among them. Nor is the justice to consider whether there is a rational explanation for the evidence other than the guilt of the accused. The Crown’s case must be taken at its highest and considered as a whole. If the evidence is reasonably capable of supporting an inference of guilt, a committal must ensue (even if the evidence is also capable of supporting an inference of “non-guilt”). The “crucial distinction” was described by the Supreme Court of Canada in R. v. Cinous (2002), 162 C.C.C. (3d) 21 (S.C.C.) at para. 91, “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”.
4My role on this review is very limited. If there is a scintilla of evidence supporting each element of the offence, there is no jurisdictional error undermining the committal. Where, as in this case, inferences must be drawn, I must ask myself whether there is evidence reasonably capable of supporting the inferences required to permit a properly instructed jury, acting judicially, to conclude that the accused is guilty beyond a reasonable doubt; see R. v. Fontaine, 2004 SCC 27 at para. 53. If there are competing inferences reasonably available on the evidence, my role is not to choose between them. Competing inferences, at least at this stage, are resolved in favour of the Crown.
Attempt Murder
5In relation to the elements of the offence of attempt murder, I note that an “attempt” is defined in s.24(1) of the Criminal Code as follows:
24 (1) Everyone who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
6In accordance with R. v. Ancio, [1984] 1 S.C.R. 225, nothing short of a subjective intent to kill will suffice as the mens rea for attempt murder. Proof of some lesser intent is not sufficient.
7Where the allegation is that a person is a party to an offence under s. 21(1)(b) of the Criminal Code, the person must know or be wilfully blind to the mens rea of the principal of the offence. While the person does not need to adopt the principal’s intent as his or her own, the person must do something with the intent of assisting the principal in the commission of the offence; see R. v. Briscoe, 2010 SCC 13 at paras. 17-18.
8The actus reus of attempt murder can encompass a very wide range of acts. Indeed, by definition “anything” done for the purpose of carrying out an intention meets the actus reus component of the offence. The only qualification is that the act committed must be one that is beyond a mere act of preparation; see R. v. Cline, [1956] O.R. 539 (Ont.C.A.). In this regard, I note that the mere pointing of a firearm at someone, which is its own offence, can when coupled with an intent to kill satisfy the actus reus of attempt murder. The firing of a shot is not required; see R. v. Boudreau, 2005 NSCA 40, where an accused was convicted of attempt murder for confronting his wife in close proximity with a loaded rifle which he pointed at her while he had one hand on the trigger, and see also R. v. Goldberg, 2014 BCCA 313, where the accused was convicted of attempt murder in circumstances where he made extensive efforts to find the victim and upon finding her pointed a gun at her and threatened to shoot her. In both of these cases, the key issue was the intent. Once a finding was made that the accused had the requisite intent, there was little difficulty in finding that the pointing of a loaded firearm was an act in furtherance of the intent and beyond an act of mere preparation.
Overview of the Facts
9On the evening of August 1, 2014, Selventhiran Selvarajah (“Selventhiran”) was working at the Asian Gold jewellery store in Toronto. He was joined by an employee, Sujeethan Pararasasinkam (“Suji”) and a friend, Dipak Vaya (“Dipak”). He was also joined by his 11-year-old daughter Pavithiraa Selventhiran (“Pavi”).
10At approximately 8:23 p.m., the Applicant and Ms. Forbes entered the store. [1] The key events that happened next unfolded very quickly. Indeed, the scene is fairly described as chaotic.
11Within approximately 30 seconds of entering the store, the Applicant tasers Suji. Seconds later, Ms. Forbes takes a handgun out of her bag and points it at Suji demanding gold and threatening to shoot. Suji then runs towards a back room of the store where a safe was located. Selventhiran came out of the workshop at the back and observed Ms. Forbes running with a gun in her hand saying “don’t move, don’t move”. Selventhiran next remembers Ms. Forbes shooting at him. The bullet missed him and went through the door of the workshop by his right side.
12In the interim, the Applicant vaulted over a counter and proceeded to a spot where Pavi was located. The Applicant grabbed Pavi by the shirt and asked her to reveal where the “button for the door” was located. Pavi lied and said she did not know. At this point, Ms. Forbes trained the gun on Pavi and said “I’ll shoot you” and “open the door”. Ms. Forbes had the firearm pointed at Pavi for 11 seconds, during which time the Applicant held Pavi by the shirt.
13Pavi and the Applicant wrestled and eventually were joined by Selventhiran who tried to free his daughter. The Applicant tasered Selventhiran and then pointed the taser at Pavi.
14Pavi testified that the Applicant told her several times that she was not going to hurt her and repeatedly asked her to reveal where the button was to open the door. Eventually, the door to the store was opened and the Applicant and Ms. Forbes exited.
15During submissions at the preliminary inquiry, the Crown sought committal on Ms. Forbes for the attempt murder of Selventhiran and for the attempt murder of Pavi. However, the Crown conceded that the Applicant should not be committed on the attempt murder of Selventhiran as there was no evidence supporting a finding that the Applicant aided the offence.
[16] In relation to Pavi, the Crown argued that a committal could rest on the evidence that: a. The Applicant held Pavi in place, preventing her from escaping; b. During this time, Ms. Forbes pointed a gun at Pavi’s head from a distance of one to two feet away while threatening to shoot Pavi; c. This occurred seconds after Ms. Forbes had fired the gun at Pavi’s father in the Applicant’s presence; and, d. The Applicant did not “distance” herself or react in a surprised manner when Ms. Forbes brought out the gun. In other words, the circumstances of the robbery supported the inference that the Applicant knew that Ms. Forbes had a gun and would use it during the robbery.
17On this basis, the Crown argued that the Applicant either knew of Ms. Forbes’ intent or was wilfully blind to it and took steps to aid Ms. Forbes with that intent by holding Pavi.
18In support of its argument that Ms. Forbes had the intent to kill Pavi, the Crown called a number of police officers and an expert witness who testified about a “flinch” that was observed on a security video observed, but ultimately not seized by police. [2] According to the officers who viewed the video, Ms. Forbes can be seen to flinch her hand downwards as she is pointing the gun at Pavi. The officers, supported by an expert in firearms, testified that in their experience when a person pulls the trigger of a handgun, a recoil is anticipated. To counteract the recoil, which brings the barrel of the gun upwards, experienced shooters will “flinch” the gun downwards at the same time as they pull the trigger. If the gun fires, the downward flinch is used to offset the upward recoil and ensure a straight shot. Where a gun, for some reason, doesn’t fire, one might see only the downward flinch. On the basis of this evidence, the Crown argued that the flinch or flinches seen on the security video observed by police (but not clearly seen on the video played during the preliminary inquiry) supported the inference that Ms. Forbes tried to fire the gun at Pavi.
19The civilian witnesses who were called to testify described the actions of Ms. Forbes as much more erratic, with Ms. Forbes pointing the gun in all directions and waving it to the right and left. The security video also supports the inference that the robbery was fast, fluid and chaotic. That said, the ultimate inferences that may be drawn regarding the import of the “flinch” evidence will be for the trier of fact. For these purposes, it is sufficient to note that if the evidence of the officers and the expert is accepted, an inference arises that Ms. Forbes tried to fire the gun.
Reasons for Committal
20The preliminary inquiry justice provided lengthy written reasons for committal following detailed submissions by counsel. In his Reasons for Committal, the preliminary inquiry justice noted at paras. 70 and 71:
In struggling to come to terms with what reasonable inference can be drawn from Vanderwyk’s actions and inactions in respect of her knowledge of Forbes’ intent, I find two of Counsel’s submissions equally compelling. First, counsel for Vanderwyk emphasizes the brevity and fluidity of the events as they transpired, arguing that there was no time for Vanderwyk to process and react to Forbes’ production and firing of the gun. Combined with the absence of evidence of prior knowledge that Forbes had a loaded gun, Counsel submits that it is not reasonable to infer Vanderwyk knew the mind of Forbes at the time the gun was levelled at Pavi.
Second, Counsel submits that had Vanderwyk known that Forbes was prepared to shoot Pavi in that circumstance, she would never have put herself in the line of fire, which she clearly was at the time Forbes was pointing the gun at Pavi and Vanderwyk was positioned directly behind the smaller (and crouching) Pavi. To the contrary, counsel submits that this fact lends itself to the inference that either she did not know Forbes had the intent to kill Pavi, or that she knew Forbes did not have the intent to kill Pavi.
21He then concluded that while these inferences were compelling, they were not the only inferences available on the evidence. In his view, notwithstanding the compelling nature of these inferences, a jury properly instructed could nonetheless infer that the Applicant aided the actions of Ms. Forbes with the requisite knowledge that Ms. Forbes had the intent to kill Pavi.
Ms. Vanderwyk’s Arguments
[22] The Applicant submits that the preliminary inquiry justice failed to consider the whole of evidence including: a. The Applicant’s utterances to Pavi; b. The absence of evidence regarding the Applicant’s understanding of Ms. Forbes’ purported “flinch” of the handgun; c. The evidence supporting intent for offences other than murder, particularly the fact that the Applicant appears to hold Pavi from behind while facing Ms. Forbes; and, d. The specific evidence of timing.
23According to the Applicant, had the preliminary inquiry justice properly considered the whole of the evidence including the items listed above, he would have found that no inference supporting the requisite intent to aid an attempt murder could be found on the part of the Applicant.
Analysis
24I am required to review the evidence called at the preliminary inquiry to determine whether there is a scintilla of evidence supporting each element of the offence of attempt murder. As long as I am satisfied that the inferences required to support a conviction can be made on the evidence, there is no jurisdictional error. The failure to consider any one item of evidence may well be an error, but it is not a jurisdictional error if there remains a basis upon which the required inferences can reasonably be made when the whole of the evidence is considered. Put another way, if I were to find that an item of evidence was not considered or was improperly considered, it would only amount to jurisdictional error if proper consideration of that item of evidence would render a required inference no longer reasonably available. Ultimately, the jurisdictional review is not meant to be a piecemeal analysis of the preliminary inquiry justice’s reasons and findings, but rather a consideration of the whole of the evidence and the available inferences flowing therefrom.
[25] Considering the evidence as a whole, I find the following inferences are reasonably available: a. A jury could infer that the act of pointing a gun at a child’s head and threatening to shoot the child seconds after having fired the gun at someone else supports an inference of an intent to kill on Ms. Forbes’ part. b. A jury could also infer that the Applicant knew that Ms. Forbes had the intent to kill. The Applicant was in close proximity to Ms. Forbes and was engaged in a joint effort to rob the jewellery store when the gun was fired by Ms. Forbes. Following the gunshot, she continued her efforts by holding Pavi while Ms. Forbes turned the gun on Pavi. The gun was pointed at Pavi for approximately 11 seconds during which time Ms. Forbes threatened to shoot Pavi. c. The Applicant’s knowledge of Ms. Forbes’ intent (assuming that is the inference drawn), is contemporaneous with her efforts to restrain Pavi. Consequently, a jury could reasonably conclude that the act of restraining Pavi was for the purpose of aiding Ms. Forbes in the pursuit of her intent to kill.
26I accept that there is much in the evidence before the preliminary inquiry justice that militates against these inferences, but my role on review is not to determine which inferences will carry the day. These inferences may be weak but they are nonetheless available and they support a committal on the count of attempt murder.
27While this finding is essentially dispositive of this application, I will briefly comment on the items of evidence that the Applicant submits were not considered by the preliminary inquiry justice.
28I accept that one inference, perhaps a strong inference, is that the Applicant’s utterances to Pavi support an inference that she does not want Pavi to be harmed. That said, the security video shows the Applicant and Pavi struggling and it is clear that Pavi wants to break free from the Applicant. An inference could arise that the Applicant’s utterances were made to calm Pavi down in order to maintain control over Pavi. That is an available inference that supports the Crown’s position that the Applicant’s acts were for the purpose of aiding Ms. Forbes.
29In terms of the evidence supporting intent for offences other than murder, I agree with defence counsel that an inference arises that neither Ms. Forbes nor the Applicant had the requisite intent for murder. Indeed, there is a good argument to be made that they needed Pavi to help them open the door and therefore would not have had any purpose or need to kill her. However, in my view this is a competing inference. Its existence does not render the Crown’s suggested inference unreasonable or unavailable, even if it is unlikely.
30Similarly, I agree with the Applicant that the act of holding Pavi from behind while the gun is aimed at her would place the Applicant in the line of fire. I agree that this fact undermines the inference on intent for aiding an attempt murder. However, given the chaotic unfolding of events, it is not clear that this is the only inference available. A jury could conclude that the positioning had more to do with the nature of the struggle than the absence of intent. Again, these are competing inferences and therefore must be determined by the trier of fact.
31Lastly, I turn to the issue of timing. The preliminary inquiry justice found compelling the defence argument that the rapid unfolding and dynamic nature of events rendered it unlikely that the Applicant could have formed the required intent for aiding Ms. Forbes’ attempt murder of Pavi. Again, I agree with the preliminary inquiry justice that the timing works in the Applicant’s favour. The security video tendered in evidence and the descriptions of events from the various witnesses all support the view that the robbery was a chaotic and rapidly unfolding series of events that last mere moments. However, I am not prepared to find that evidence of timing forecloses the availability of a finding that the Applicant knew of Ms. Forbes’ intent and took steps to aid her with that intended purpose.
32In terms of the flinch, I agree with the Applicant that there is no evidence supporting the inference that the Applicant would have known or appreciated the import of the flinch and further that the Applicant, armed with that knowledge, would have continued to assist Ms. Forbes. To the extent that the preliminary inquiry justice used this evidence to infer intent on the Applicant’s part, he erred. However, despite this error, I remain of the view that the remaining evidence considered as a whole nonetheless supports the required inferences.
33As a result, I am satisfied that there is at least a scintilla of evidence supporting an inference of requisite elements of attempt murder on the part of the Applicant.
34Despite the very able submissions of Ms. Trehearne, the application is dismissed.
Footnotes:
1For the purpose of this application, I am relying on the preliminary inquiry Justice’s finding that there is sufficient evidence of identification in relation to both Ms. Vanderwyk and Ms. Forbes.
2I understand that the original high quality security video was subsequently lost or destroyed and will be the subject of pre-trial motions in this trial.
Justice J. Di Luca Released: March 6, 2019
Corrigenda
- The text of the original Ruling at paragraph [34] has been corrected to read Ms. Trehearne.
Ontario Superior Court of Justice Her Majesty the Queen – and – Katrina Vanderwyk, Defendant Ruling on Application Justice J. Di Luca