Court File and Parties

Court File No.: CR-16-1840 and CR-16-1831 Date: 2019 04 30 Ontario Superior Court of Justice

Between: Her Majesty the Queen N.J. Bridge and K. Holmes for the Crown

- and -

Richard Pereira S. Hebscher and D. Shulman, for Richard Pereira

Heard: March 28, 2019

Reasons on Directed Verdict Application

D.E. Harris J.

[1] The accused Richard Pereira is charged with the first degree murder of Kathryn Horne committed March 28, 2015. The accused is being tried without a jury. These are my reasons for dismissing the directed verdict application brought by the defence seeking to reduce the charge from first degree murder to second degree murder.

[2] As stated at the close of argument, there is sufficient evidence on first degree murder with respect to murder committed during the course of a forcible confinement under Section 231(5)(e) of the Criminal Code but insufficient evidence in reference to planned and deliberate murder under Section 231(2).

The Evidence

[3] The Crown’s case was sparse but not insubstantial. The accused and the deceased had been seeing each other for over a year. At the time, the accused lived in a house in Brampton with his mother and the deceased lived in Toronto. The day of the murder, March 28, 2015, the deceased talked to her friend Sue Follinsbee on the telephone and told her that she was going to see Mr. Pereira that night and it was probably going to be for the last time. She would fill her in the next day when the two were to go to the craft show in Toronto together.

[4] At about 12:37 a.m. on March 29, 2015, Mr. Pereira’s mother made a 911 call from the home she shared with her son Mr. Pereira at 51 Nanwood Drive in Brampton. When police arrived at the home, they found Mr. Pereira sitting on the couch with his head in his hands. He said he wanted to kill himself. The police were of the view that he was a risk to himself and handcuffed him in order to begin the process of civil committal under the Mental Health Act. Before being led away, he told the police that they should look in the basement. He said he had done something bad.

[5] Mr. Pereira’s mother Isabel and two police officers ventured into the basement bathroom. Ms. Pereira opened the door from the basement bathroom to the cold cellar adjoining it. She screamed. The body of Ms. Kathryn Horne lay there. The pathology evidence showed that she had been stabbed 34 times. As well, there were 16 incised wounds. There was a scarf around her neck. Part of it was in her mouth. Forensic evidence determined that Ms. Horne had been killed in the basement bathroom and then had been moved into the small cellar room. There was a significant amount of trace blood on the floor of the bathroom and there was evidence to show attempts had been made to wipe it up.

[6] There was diluted blood in the kitchen sink upstairs. A steak knife lay in the sink. It is safe to assume that this was the murder weapon. The defence concedes as much for the purpose of this directed verdict application.

[7] STRmix software determined that the DNA on the left side of the blade of the knife in the kitchen sink, which could have come from blood, skin\fingerprint or saliva, was derived from a mix of DNA from Isabel Pereira, the accused’s mother, Richard Pereira, the defendant, and Kathryne Horne, the deceased.

[8] The deceased’s jacket and other belongings were found outside the home in garbage bags together with construction waste from the renovations under way at the house. Her cell phone was smashed and found in the parking lot behind the house and the case was found on the roof of the shed on the accused’s property.

The Directed Verdict Standard

[9] The purpose of the directed verdict threshold is to protect the accused from allegations which are insufficient to permit a reasonable jury to properly find guilt: R. v. Skogman, [1984] 2 S.C.R. 93, 13 C.C.C. (3d) 161, 1984 SCC 22; R. v. Russell, 2001 SCC 53, 44 C.R. (5th) 231, at para. 20.

[10] In a directed verdict application, credibility must be assumed. The Crown’s case must be taken at its highest. In a circumstantial case, a trial judge, like a judge at a preliminary hearing, must determine whether an inference is available to a jury, not whether he or she would draw it themselves. The leading statement on the subject of circumstantial evidence at the directed verdict or preliminary hearing stage is from R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54:

29 … where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

30 In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

(Emphasis in Original)

The Application of the Directed Verdict Standard

(i) Death Caused while Committing Forcible Confinement (Section 231(5)(e))

[11] A killing carried out while committing a forcible confinement is rendered first degree murder by virtue of the aggravating feature of the domination imposed by the confinement. There are three ingredients in this form of first-degree murder: 1. Forcible confinement; 2. Murder while committing the forcible confinement; and 3. The forcible confinement is not subsumed in the murder but constituted a separate and distinct act.

[12] First, it can be inferred that the accused took possession of the murder weapon, a steak knife, from the kitchen drawer. There were several other knives exactly like it there. The forensic evidence establishes the deceased was stabbed to death in the downstairs bathroom. The basement, with the exception of the bathroom, was undergoing a complete renovation. There is an available inference that, since there was a bathroom on the first floor, there was no reason to go down to the basement bathroom other than to commit a killing. While there might be other inferences which could be drawn, this inference is one that is available on the Crown’s evidence.

[13] It is an available conclusion that the accused took the deceased down there solely to kill her. Although the knife could have been concealed and the deceased lured unknowingly to the basement bathroom, it is a viable inference that the accused marched the deceased downstairs at knifepoint. That would be sufficient to establish forcible confinement on a prima facie basis.

[14] Justice Binnie said in R. v. Pritchard, [2008] 3 S.C.R. 195, 2008 SCC 59:

24 The authorities establish that if for any significant period of time [the deceased] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2): see Luxton, at p. 723; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), per Cory J.A., at p. 475; R. c. Tremblay (1997), 117 C.C.C. (3d) 86 (Que. C.A.), 1997 QCCA 10526, per LeBel J.A. (as he then was), at pp. 91-92; and R. v. Mullings, 2005 CarswellOnt 3022 (Ont. S.C.J.), per Durno J., at para. 39.

[15] Furthermore, if this be the scenario, the forcible confinement having immediately preceded death, death would have been caused in the course of the forcible confinement as required by Section 231(5): R. v. Paré, [1987] 2 S.C.R. 618, 38 C.C.C. (3d) 97, 1987 SCC 1.

[16] Lastly, on this version of events, it is reasonable to conclude that the forcible confinement was a distinct and independent act from the killing. This is a requirement of this mode of first-degree murder. Otherwise, the aggravating factor of the commission of a crime of domination facilitating the murder does not exist. Justice Binnie said in Pritchard at para. 29,

If no extra domination is involved in the act of confinement, then it cannot be said that the accused confined the victim and then exploited that domination by an act of killing. Only one episode of domination existed, created by the act of killing, which at the same time confined the victim. In such a case, the rationale of s. 231(5) is absent.

[17] The accused’s actions have a parallel in the facts of R. v. Kimberley (2001), 157 C.C.C. (3d) 129 (Ont. C.A.), 2001 ONCA 24120, per Doherty J.A. In that case, the deceased was attacked when she got off the elevator and then dragged, while still alive, into the underground parking lot area where she was killed. The forcible confinement and the killing were not one and the same act. They were distinct and sequential.

[18] The same is true here on the reasonable hypothetical scenario of the accused coercing the victim down the stairs at knifepoint. There is evidence the forcible confinement was not inherent in the killing. It preceded it and facilitated it.

[19] For these reasons, there was found to be a prima facie case of first degree murder through the route provided in Section 231(5)(e).

(ii) Planned and Deliberate Murder (Section 231(2) of the Code)

a. The Meaning of Planned and Deliberate

[20] On the evidence here, the only means to arrive at planned and deliberate first degree murder, as will almost always be true, is by way of circumstantial evidence. The question involves the accused’s mental state. There was no direct evidence of this in the Crown’s case. The approach to circumstantial evidence from R. v. Villaroman, [2016] 1 S.C.R. 1000, 2016 SCC 33, at paras. 29-30 applies with the overlay from Arcuri.

[21] The meaning of planned and deliberate has been established for many years. In R. v. Widdifield, (1961) 6 C.R.L.Q. 152 (Ont. H.C.), Gale, J., (as he then was) charged the jury that “planned” means “a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed.” Also see R. v. Reynolds (1978), 22 O.R. (2d) 353, 44 C.C.C. (2d) 129 (C.A.), 1978 ONCA 1269 per Martin, J.A., at p. 137.

[22] In More v. R., [1963] S.C.R. 522, 41 C.R. 98, [1963] 3 C.C.C. 289, 1963 SCC 79, “deliberate” was defined as “considered not impulsive” “not hasty in decision” and “slow in deciding.”

[23] The interpretation of the words planned and deliberate is fortified by reflecting on the policy basis behind the provision. As was said by Justice Dickson, as he then was, in the transferred malice case of R. v. Droste, [1984] 1 S.C.R. 208, 1984 SCC 68, “there is an added moral culpability to a murder that is planned and deliberate which justifies a harsher sentence.” The philosophy is that when a murder is considered and is not hasty or impulsive, an uncompromised, thoroughly volitional choice is made to kill. There is a more fully conscious appreciation of the circumstances and consequences. The luxury of reflection increases the offender’s moral blameworthiness.

[24] Wayne LeFave, in his treatise, Substantive Criminal Law, (3d ed., Thomson Reuters, October 2018) at Section 14.7(a) considers the American law in the area. Many of the states use language similar to the French version of our provision:

231(2) Meurtre au premier degré

Le meurtre au premier degré est le meurtre commis avec préméditation et de propos délibéré.

[First-degree murder is premeditated and deliberate murder.]

[25] LeFave writes,

Perhaps the best that can be said of “deliberation” is that it requires a cool mind that is capable of reflection, and of “premeditation” that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.

… to ‘speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, … destroys the statutory distinction between first and second degree murder.’

On the basis of events before and at the time of the killing, the trier of fact will sometimes be entitled to infer that the defendant actually premeditated and deliberated his intentional killing. Three categories of evidence are important for this purpose: (1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant's prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

(Footnotes omitted)

[26] Although care must be taken when relying on American law, these comments provide additional helpful guidance.

[27] Lastly, as an interpretive strategy, it is important to ensure that the sentencing distinction between first and second degree murder is maintained. That is a realistic concern. On a plain language, non-contextual interpretation, planned and deliberate could be understood as synonymous with intentional. However, as was said by Justice Cartwright in More,

[Deliberate] … as used in the subsection cannot have simply the meaning "intentional" because it is only if the accused's act was intentional that he can be guilty of murder and the subsection is creating an additional ingredient to be proved as a condition of an accused being convicted of capital murder.

[28] Benjamin Cardozo, when he was a lawyer, was a staunch critic of the way premeditation was approached in the American context. He thought the concept was too vague to support a distinction upon which the life of the defendant often hinged. He said,

If intent is deliberate and premeditated whenever there is choice, then in truth it is always deliberate and premeditated, since choice is involved in the hypothesis of the intent.

Benjamin N. Cardozo, What Medicine Can Do for Law, Address Before the New York, Academy of Medicine (Nov.1928), in LAW AND LITERATURE 70, 100-01 (1931)

[29] The subtle linguistic distinction between intention versus planning and deliberation can easily be eroded. It is important that this be guarded against. After all, the difference in sentence is potentially enormous. Fifteen years of parole ineligibility could be at stake. For second degree murder, ineligibility of parole can be set between 10 and 25 years, the general (although not firm) rule being the minimum of 10 years: Section 745(b) of the Criminal Code, R. v. Shropshire, [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 1995 SCC 47 at para. 29. First degree murder is inflexible and mandatorily requires 25 years of parole ineligibility: Section 745(a).

[30] The two degrees of murder must be kept distinct from one another. The definition of planning and deliberation from the case law must be adhered to and applied carefully to the evidence.

b. Application to this Case

[31] On the Crown case, something occurred in the house at 51 Nanwood Drive on the night of March 28, 2015 between the accused and the deceased which led to the formation of his intention to kill and the act of killing. The most obvious possibility is the deceased informed the accused that she did not intend to see him again. She had been seeing him for quite a while and had assisted him financially in a not insignificant way. This could have been the motive behind the killing.

[32] Motive in this context refers to the emotional state of the accused which led to his commission of the act charged: R. v. Malone (1984), 11 C.C.C. (3d) 34, [1984] O.J. No. 22 (Ont. C.A.), 1984 ONCA 3480, at para. 25 per Martin J.A., R. v. Brissard (2017), 356 C.C.C. (3d) 494, 2017 ONCA 891, at para. 17 per Pardu J.A.

[33] Whatever prompted the killing, there is no evidence that the accused was lying in wait in his home for the deceased. There is no evidence that he killed her based on a preconceived plan. Any such conclusion would be based on speculation and nothing more.

[34] The leading case in which intention to kill was formulated in a brief time span immediately before the killing is the decision of the Saskatchewan Court of Appeal in R. v. Smith (1979), 1 Sask. R. 213, 51 C.C.C. (2d) 381, 1979 SKCA 2233. Three men, including the accused and the deceased, were shooting up an abandoned house. Smith and the deceased left the house and soon got into an argument. Smith shot the deceased with a shotgun, severely damaging his elbow. The deceased started running away and Smith shot at him three times, hitting him twice in the back. When the deceased went down, the accused went up to him and shot him in the head. The whole episode took about thirty seconds.

[35] The Saskatchewan Court of Appeal held that the evidence was incapable of supporting a conviction for first degree planned and deliberate murder. It was held (Carswell),

28 There must be some evidence the killing was the result of a scheme or design previously formulated or designed by the accused and the killing was the implementation of that scheme or design. It is obvious a murder committed on a sudden impulse and without prior consideration, even though the intent to kill is clearly proven, would not constitute a planned murder.

29 In the present case, there is not the slightest evidence the appellant had given any consideration to the murder … until after he and [the deceased] had left the house.

31 I am satisfied there was no evidence whatever to support the conclusion that the actions of the appellant, cruel and sadistic as they were, in killing [the deceased] was the implementation of a previously determined design or scheme. I think it is obvious his actions were the result of a sudden impulse…

32 It may well be that the killing was deliberate. However, even if it was, there could only be a verdict of first degree murder if the evidence established as well that the murder was planned.

[36] In R. v. Ruptash (1982), 68 C.C.C. (2d) 182, 1982 ABCA 165 the accused had strangled the victim. The trial judge held that planning and deliberation was proven. The act was “deliberate” because it might have taken as long as four or five minutes before death was accomplished. The Court of Appeal held that this was error, saying that the deliberation required must take place before the act of murder commences. Also see Justice Watt’s comments when he sat as a trial judge in R. v. Fatima (2006), 42 C.R. (6th) 239 (Ont. S.C.J.), 2006 ONSC 63701, at para. 65 and in R. v. Palma, [2001] O.J. No. 3283 (Ont. S.C.J.), at para. 212.

[37] In the case at hand, drawing available inferences from the evidence, there are only two final conclusions possible on the Crown’s evidence. The first is more of a non-conclusion. On the minimalist evidentiary foundation presented, it can be concluded that it is simply not possible to know what happened in the house leading up to the killing.

[38] The other potential scenario relies on the motive evidence of Ms. Follinsbee. Using this evidence, it can be inferred the victim told the accused she did not want to see him anymore and he flew into a rage, killing her. The frenzied knife attack evidenced by the numerous injuries to her body supports this description of the accused’s mental state.

[39] On the first evidentiary conclusion, there is no way to fill the evidentiary vacuum. There is simply no evidence to demonstrate that the murder was planned and deliberate. None of the three categories of evidence set out by LeFave above to prove premeditation favour the Crown.

[40] If the circumstances that led to the killing are unknowable, only speculation could lead to an inference of planning and deliberation. If anything, the evidence sits better with a conclusion of a lack of planning and deliberation than it does with planning and deliberation.

[41] LeFave writes,

The mere fact that the killing was attended by much violence or that a great many wounds were inflicted is not relevant in this regard [on the issue of planned and deliberate], as such a killing is just as likely (or perhaps more likely) to have been on impulse.

[42] On the second scenario, the Crown fares no better than on the first. This involves the second circumstance identified by LeFave in which motive is relevant to planning and deliberation. However, in this case, motive tells against planning and deliberation.

[43] An inferential conclusion that the victim told the accused she no longer wanted to see him could have as a more or less immediate consequence the spontaneous generation of an intention to kill. This was the only evidence of the accused’s possible animosity towards her. Like with the forcible confinement ground of liability, there is an available inference that the accused then armed himself with the kitchen steak knife. He then, on the version most favourable to the Crown, marched the deceased downstairs through the basement renovation and killed her in the bathroom.

[44] Between the formation of the intention to kill and the actual killing, can planning and deliberation be inferred? Taking the Crown’s case at its highest, the first problem for the Crown is the short time span between the two events. No definitive statement of the time period required to plan and deliberate can be made. The circumstances are too varied. However, close proximity in time to the killing like in Smith inclines against a planning and deliberation conclusion.

[45] Both planning and deliberation contain a time element. Planning requires careful thought and weighing the nature and consequences. Deliberation has explicit time based elements. The decision to kill must not be hasty, it must be a slow, not impulsive decision.

[46] In this instance, there is no direct evidence of the time between the generation of the intent to kill and the killing. It was more likely relatively short, however, as opposed to long. This is a significant although not in itself a fatal problem for the Crown.

[47] The second related problem, which is more fundamental, is that on the hypothetical scenario available to the Crown, the planning and deliberation, like the intention to kill, could only commence with the victim’s announcement to the accused that she no longer wanted to see him. The killing was a reaction to this. The accused was overcome by rage.

[48] This motive evidence and the likely actions it produced effectively cancels out a planning and deliberation conclusion. A calm and collected mind being necessary, the anger of the accused upon receiving the deceased’s announcement convincingly refutes premeditation. Instead, the motive of a spurned lover suggests a killing committed on sudden impulse.

[49] The accused’s after-the-fact conduct does not improve the Crown’s case on planning and deliberation. The hiding of the deceased clothes and belongings in garbage bags outside the house and the destruction and disposal of her cell phone are at least if not more consistent with a panicked attempt to avoid apprehension as with adherence to a previously laid plan. These were typical avoidance measures and were not the acts of an organized mind or consistent with a pre-existing plan. The accused’s conduct was haphazard and the product of fear of apprehension. The post-offence conduct fails to supply prima facie evidence to support planning and deliberation: compare R. v. Poitras (2002), 57 O.R. (3d) 538, 1 C.R. (6th) 366 (C.A.), 2002 ONCA 23583 and R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.), 1999 ONCA 1723.

[50] The case most similar to this one is the British Columbia Court of Appeal’s judgment in R. v. Denison, [2001] B.C.J. No. 2600, 2001 BCCA 703. There, a husband murdered his wife with an axe in their home. There was evidence, like in this case, that the victim told the appellant on the night she was killed that their relationship was “totally finished.” He was highly intoxicated and it was shown that on the night of the crime he had called her stupid and pushed her. Also, on the night of the killing, the accused was showing off by swinging the axe over his head.

[51] The axe was usually locked in the shed. The appellant would have had to retrieve it from there before inflicting the fatal blows in the couple’s bedroom. There was some forensic evidence that the appellant may not have killed the victim until some time after she went to bed. Ultimately, however, this evidence was imprecise.

[52] The Court of Appeal in reviewing the first degree murder conviction found in obiter that there was a “bare sufficiency of evidence” but that the verdict was unreasonable under Section 686(1)(a)(i) of the Criminal Code. The first degree murder conviction was reduced to second degree murder upon appeal.

[53] The implication is that the evidence in Denison was just able to pass the directed verdict test. In my view, the evidence in this case cannot. There is no evidence whatsoever of a meaningful delay between the materializing of the motive and the killing. The motive in this case likely arose all of a sudden. In Denison, it accumulated over weeks or months.

[54] Denison had to go much further out of his way to retrieve the axe than the accused did here to get the steak knife. There was no toting the knife around beforehand nor any evidence of animosity towards the victim prior to the killing.

[55] In this case, the evidence is insufficient for a reasonable finder of fact, properly instructed, to arrive at a conviction for first degree murder based on planned and deliberate murder. To quote Cardozo again, the “suddenness of the intent, the vehemence of the passion” arising from the motive evidence and the terrible knife wounds to the deceased’s body, preclude the accused premeditating the murder in the required sense.

[56] These are the reasons why it was held there was insufficient evidence of planning and deliberation to continue past the end of the Crown’s case. The Crown however, as explained above, has met the threshold under Section 231(5)(e) to continue with the charge of first degree murder based on forcible confinement.

[57] For these reasons, the application for a directed verdict to reduce the count in the indictment from first degree murder to second degree murder was dismissed.

D.E. Harris J. Released: April 30, 2019