CITATION: R. v. Nelson, 2017 ONSC 7553
COURT FILE NO.: CRIMJ(P) 359-17
DATE: 20171215
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Crown
v.
BRIAN NELSON AND ANDREW RAMDASS
Defendants/ Applicants
BEFORE: Ricchetti, J.
COUNSEL: P. Maund for the Crown H. Alys for Brian Nelson A. Edgar for Andrew Ramdass
HEARD: December 10, 2017
RULING ON CERTIORARI APPLICATIONS
THE APPLICATIONS
[1] Both Defendants bring certiorari applications seeking to quash the decision of Duncan J. dated March 29, 2017 committing both Defendants to stand trial.
BACKGROUND
[2] An argument began in the park between two groups of men. A physical altercation ensued. Mr. Kenyi died as a result of blunt force trauma to his head that fractured his skull. This blunt force trauma could have been caused when Mr. Kenyi was pushed or punched in the head by one of the men involved in the altercation or when he hit his head on the ground.
[3] Mr. Nelson and Mr. Ramdass were present during the altercation and were charged in connection with Mr. Kenyi's death, along with other co-accused.
[4] A number of witnesses were present during the altercation.
[5] The preliminary inquiry took place before Justice Duncan of the Ontario Court of Justice over 18 days in February and March 2017.
[6] Justice Duncan determined that a jury could find Mr. Kenyi died as a result of blow to his head after being pushed or punched or by hitting his head on the ground.
[7] At the conclusion of the preliminary inquiry, Justice Duncan committed both Mr. Nelson and Mr. Ramdass (along with the other co-accused) to stand trial for manslaughter.
[8] As for Mr. Nelson, Justice Duncan concluded that a jury could conclude that he pushed Mr. Kenyi causing him to hit his head on the ground. Mr. Membrino, one of the witnesses to the altercation, testified in chief that it was Mr. Nelson who pushed Mr. Kenyi causing him to fall to the ground.
[9] As for Mr. Ramdass, Justice Duncan concluded that the evidence of Mr. Jones (that Mr. Ramdass had made physical contact with Mr. Kenyi causing Mr. Kenyi to fall) and Mr. Narwal (that it was a push/punch which caused Mr. Kenyi to fall) could, in combination, permit a jury to find that Mr. Ramdass’ contact with Mr. Kenyi caused Mr. Kenyi to fall to the ground and hit his head.
POSITION OF THE PARTIES
Mr. Nelson
[10] Defence counsel admits that Mr. Membrino testified in chief that it was Mr. Nelson who punched Mr. Kenyi to the ground. However, Defence counsel submits that during Mr. Membrino's cross examination Mr. Membrino testified that he did not know what Mr. Nelson had done during the altercation.
Mr. Ramdass
[11] Defence counsel submits that the evidence against Mr. Ramdass is entirely circumstantial and, the evidence as a whole, is not capable of a reasonable inference that Mr. Ramdass committed an assault against Mr. Kenyi.
The Crown
[12] The Crown submits there was some evidence that both Mr. Nelson and Mr. Ramdass could have assaulted or caused Mr. Kenyi to fall.
THE LAW
Certiorari Applications
[13] There is no real disagreement regarding this court's jurisdiction on a certiorari application. This court may only grant relief where the lower court has acted in excess of its jurisdiction. See: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.).
[14] This court may not overturn a decision simply because this court might have come to a different conclusion than the presiding judge’s conclusion. See: R. v. Russell (2001), 157 (3d) 1 (S.C.C.). As stated in Russell, supra, at para. 26: “It is well-settled law that errors as to the sufficiency of the evidence are within the jurisdiction of the preliminary inquiry judge, as long as there is some evidence supporting the committal…” (emphasis added)
[15] A court reviewing a committal order is not permitted to interfere with the order if there is “some evidence” or “a scintilla of evidence” respecting each essential element of the offence charged. Re. Skogman and the Queen (1984), 1984 CanLII 22 (SCC), 13 C.C.C.(3d) 161 (S.C.C.).
[16] If there is some admissible evidence on each essential element, the presiding judge must commit the defendant to trial. The failure to do so is a jurisdictional error. See. R. v. Sazant 2004 SCC 77, [2004], S.C. J. No. 74 (S.C.C.).
Committal at a Preliminary Inquiry
Direct Evidence
[17] Where there is direct evidence on an essential element, the presiding judge must accept that evidence for the purpose of determining whether to commit the accused. See Arcuri, supra:
[22]….Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt’s Manual of Criminal Evidence (1998), at §8.0 (“[d]irect evidence is evidence which, if believed, resolves a matter in issue”); McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at §2.74 (direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial”). It is for the jury to say whether and how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.
(emphasis added)
Circumstantial Evidence
[18] The presiding judge must consider all of the evidence. See: s. 548(1) (b) of the Code. The failure to do so is a jurisdictional error. See: Sazant, supra. Failure to consider any circumstantial evidence capable of identifying an accused as the perpetrator is a jurisdictional error. R. v. C.T. [2006] O.J. No. 75 (C.A.).
[19] Where the evidence on an essential element is entirely based on circumstantial evidence, the presiding judge must, by necessity, embark upon a limited weighing of the evidence to determine whether a properly instructed jury could draw a reasonable inference from all the evidence. See: Arcuri, supra paras. 1 and 23.
[20] It is an error to isolate particular piece of evidence and consider whether a reasonable inference can be draw by the presiding judge. It is the entirety of the evidence, all of the circumstantial evidence and the evidence as a whole, which must be considered by the presiding judge to determine whether a reasonable inference can be drawn. R. v. Muir 2008 ONCA 608, [2008] O.J. No. 3418 (C.A.) at para 1.
[21] The presiding judge does not weigh the evidence for competing inferences or choose one inference over another. That assessment is for the trier of fact. See: Arcuri supra. If there are competing reasonable inferences, the presiding judge is not to weight the competing inferences but to only consider any reasonable inference(s) that favour the Crown. R. v. Sazant, at para. 18. The inference need not be “compelling” or even “easily drawn” in order to be reasonable. R. v. Munoz, 2006 CanLII 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.) at paras 21-22 and R. v. Dwyer, 2013 ONSC 1036, [2013] O.J. No. 961 (C.A) at para 10.
ANALYSIS
Mr. Nelson
[22] Mr. Nelson submits that Justice Duncan committed jurisdictional error by failing to weigh or consider the entirety of Mr. Membrino's evidence, namely, Mr. Membrino’s cross examination where, it is suggested, takes away from the identification of Mr. Nelson as the person who punched Mr. Kenyi.
[23] In my view, that is exactly what a presiding judge is prohibited from doing. The presiding judge is not to determine which part of Mr. Membrino’s testimony will be accepted by the jury (his evidence in chief or evidence in cross examination or a combination of both). That is within the exclusive jurisdiction of the jury.
[24] It is only where the evidence is entirely circumstantial, that the preliminary inquiry judge engages in the limited weighing of the evidence to determine whether the inference sought to be relied on by the Crown is a reasonable inference.
[25] In this case, Mr. Membrino's direct evidence in chief that Mr. Nelson was the person who punched Mr. Kenyi causing him to fall, is sufficient direct evidence for Justice Duncan to have committed Mr. Nelson to trial on the manslaughter charge. Even if I accept that Mr. Membrino eventually testified on cross-examination that he didn't know what Mr. Nelson had done during the altercation, that does not alter the fact a jury could accept Mr. Membrino's evidence in chief that it was Mr. Nelson who punched Mr. Kenyi to the ground causing his death. The presiding judge is not permitted to weigh the evidence to determine what version (if there is a difference) of Mr. Membrino’s evidence the jury will or will not accept.
[26] That fact that other witnesses may have given exculpatory evidence as to Mr. Nelson's involvement, does not change the fact that a jury could accept Mr. Membrino's direct evidence and reject the evidence of these other witnesses.
[27] This is not a case where the Crown seeks to draw an inference from circumstantial evidence. It is direct evidence. The direct evidence of Mr. Membrino as to Mr. Nelson’s unlawful act which caused Mr. Kenyi’s death.
[28] Given Mr. Membrino's evidence, it cannot be said there is an entire absence of evidence that Mr. Nelson could be found to have committed manslaughter. See Re: Martin, Simard and Desjardins (1977), 1977 CanLII 1383 (ON CA), 41 C.C.C. (2d) 308 (Ont. C.A.) at 340.
[29] Mr. Nelson's certiorari application is dismissed.
Mr. Ramdass
[30] Mr. Ramdass was committed to trial because the presiding judge concluded there was admissible circumstantial evidence from which a reasonable inference could be drawn by a jury that Mr. Ramdass was the individual who caused Mr. Kenyi’s fall.
[31] The Defence disputes that, the evidence at the preliminary inquiry, would permit a reasonably instructed jury to find Mr. Ramdass was the person who assaulted Mr. Kenyi (i.e. the unlawful act).
[32] Was there admissible evidence from which a reasonable inference could be drawn by a properly instructed jury that Mr. Ramdass committed the unlawful act – causing Mr. Kenyi to fall the ground to his death?
[33] The evidence regarding Mr. Ramdass’ involvement in the altercation consists of the following:
(a) Mr. Jones’ Testimony (March 16, 2017 transcript)
• Mr. Jones testified that Mr. Ramdass told the two groups to “chill”. He was in between the groups with his hands outstretched, palms up trying to prevent the altercation;
• Q And, in doing that motion with his left and right hand, with his palms open, did he make contact with anybody? A No. (page 34);
• Mr. Jones went on to say that Mr. Ramdass got shoved by someone. Mr. Jones then left the area. Mr. Ramdass left the area;
• After being presented with his statement to the police, Mr. Jones stated that the statement didn’t refresh his memory on the effects of Mr. Ramdass’ hands on any other person. (page 40)
o A. She said that Andrew hit the guy. I said, no. And then the police were trying to imply that’s what happened. And I said, no. And then, they also, also implied like what happened on the incident, I told them that I was – I could not see clearly, I was away from the field, and then they, they kept leading me on and leading me on. So, I just old them what they wanted to hear. (age 46)
o A. Okay. According to – you know, what – when the guy, when Andrew was stopped was trying to part the situation? Q Yes. A. Yeah, he was saying, oh, the African – the hit caused the African guy to die, I said, no. He did not hit, that was he was suggesting. ‘Cause they played recording to me. (page 47)
o Q. Now earlier today, you gave testimony about what Andrew [Ramdass] was doing and the impression you had as to… A. Yeah. Q. Why Andrew as doing that… A. Yeah. Q. So, my question is, your answers this morning, is that based on your observations of Andrew or Papito or someone else’s observations of Andrew? A. That’s based on what others have told me. Other people. Q. So what’s your recollection? A. Oh, my recollection is when he was saying, guys chill, you guys chill. Q Yes? A. And then he got shoved, and then he ran. He jogged. (pages 59-60)
(b) The Agreed Statement of Facts
… Andrew put his hands up, arms outstretched, hands open, palms facing out saying, “You guys stop, you guys stop.’ During the course of this, Andrew’s hand made contact with the African man [Mr. Kenyi], the African man lost his balance, fell down on his back and hit the back of his head. The contact Andrew made with the African man did not appear to Mr. Jones to be intentional.
After falling, the African man seemed conscious and attempted to get back up. However, he was swarmed by other individuals before he was able to get back up. Andrew and I, that being Mr. Jones, left as the African man was being swarmed.
(emphasis added)
(c) Mr. Narwal’s evidence
• I will quote from the Crown’s factums at page 4 as to Mr. Narwal’s evidence:
“…Four or five member of that group came towards Kenyi and ‘got aggressive’. One member of the group threw a punch at Kenyi, but missed. That same person threw a second punch, and hit Kenyi in the face. This caused Kenyi to fall, and ‘crack’ his skull on the ground. Four members of the group surrounded Kenyi, each wanted to ‘get their shot in’. One member of the group kicked Kenyi’s chest with his foot. Another member of the group wielded a stick, and hit Kenyi in the head three times. This person was later identified as Bell. During this time, Kenyi was not moving or trying to defend himself.”
• Mr. Narwal testified that it was not Mr. Ramdass that threw the punches at Mr. Kenyi.
[34] Justice Duncan’s committal of Mr. Ramdass was based on:
a) Mr. Jones’ evidence that Mr. Ramdass was seen between the two groups of individuals which included Mr. Kenyi;
b) the Agreed Statement of Facts that Mr. Ramdass, while holding out his hands, made contact with Mr. Kenyi causing him to lose his balance and fall to the ground; and
c) Mr. Narwal’s evidence, that someone, but not Mr. Ramdass, threw several punches at Mr. Kenyi, one of which knocked Mr. Kenyi to the ground before he was swarmed by a number of persons.
[35] In my view, there is insufficient evidence upon which a properly instructed jury could conclude that Mr. Ramdass was guilty of manslaughter. On the evidence, a properly instructed jury could not find that Mr. Ramdass committed an unlawful act – an assault.
[36] Mr. Narwal’s evidence does not assist in the grounds for committal. Yes, someone punched Mr. Kenyi in the face but Mr. Narwal was adamant that it was not Mr. Ramdass. At no point does he say that Mr. Ramdass punched Mr. Kenyi. The jury can reject Mr. Narwal’s evidence but cannot use Mr. Narwal’s evidence to conclude it was Mr. Ramdass that punched Mr. Kenyi.
[37] Turing to Mr. Jones’ evidence, for the jury to find that Mr. Ramdass committed the unlawful act (an assault), the jury would have to reject the evidence that Mr. Ramdass’ contact with Mr. Kenyi appeared to be unintentional. The jury is entitled to reject this evidence.
[38] An assault requires the intentional application of force. For the jury to find that Mr. Ramdass intentionally applied force to Mr. Kenyi causing his fall, this requires some admissible evidence. At best, the evidence establishes that Mr. Ramdass apparently had unintentional contact with Mr. Kenyi – not the intentional application of force to Mr. Kenyi.
[39] Disbelieving that Mr. Ramdass’ contact with Mr. Kenyi was apparently unintentional is not admissible evidence that permits a jury to conclude Mr. Ramdass’ contact with Mr. Kenyi was an intentional application of force. By necessity, the jury would have to engage in impermissible speculation on this essential element that Mr. Ramdass’ contact was an intentional physical application of force to Mr. Kenyi. Such a conclusion is not a reasonable inference to which a properly instructed jury could draw on the preliminary inquiry evidence.
[40] There is simply no evidentiary basis for a properly instructed jury to conclude that Mr. Ramdass intentionally applied force to (assaulted) Mr. Kenyi.
[41] Having determined that there was no basis upon which a reasonably instructed jury could find Mr. Ramdass guilty of manslaughter on the preliminary inquiry evidence, the committal by the presiding judge was a jurisdictional error.
Conclusion
[42] Mr. Nelson’s certiorari application is dismissed.
[43] Mr. Ramdass’ certiorari application is granted and Justice Duncan’s committal of Mr. Ramdass to trial is hereby quashed.
Ricchetti, J.
Date: December 15, 2017
CITATION: R. v. Nelson, 2017 ONSC 7553
COURT FILE NO.: CRIMJ(P) 359-17
DATE: 20171215
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN, Crown
AND
BRIAN NELSON AND ANDREW RAMDASS, Defendants/Applicants
COUNSEL: P. Maund for the Crown H. Alys for Brian Nelson, Defendant/Applicant A. Edgar for Andrew Ramdass, Defendant/Applicant
ENDORSEMENT
Ricchetti, J.
Date of Release: December 15, 2017