COURT FILE NO.: CrimJ(P) 307/20
DATE: 2020 09 24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Carson Coughlin and Shanna Ferrone, for the Crown / Respondent
Respondent
- and -
PHILIP FITZPATRICK
Salvatore Caramanna, for the Applicant
Applicant
HEARD: September 18, 2020
REASONS FOR JUDGEMENT ON APPLICATION FOR CERTIORARI TO QUASH COMMITTAL FOR TRIAL ON FIRST DEGREE MURDER CHARGE
RESTRICTION ON PUBLICATION
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
J.M. Woollcombe J.
Introduction
[1] Philip Fitzpatrick brings an application for certiorari to quash the order that he stand trial on one count of first degree murder made by Jaffe J. on May 8, 2020 after a preliminary inquiry.
[2] It is the applicant’s position that the preliminary inquiry justice committed jurisdictional error in committing him to stand trial by:
• not considering the whole of the evidence called at the preliminary inquiry as required by s. 548(1)(b) of the Criminal Code; and
• finding there was sufficient evidence before her, as opposed to impermissible speculation, capable of establishing a prima facie case.
[3] For the reasons set out below, the application is dismissed.
The Committal Decision
[4] On June 21, 2018, Brandon Hall was shot and killed after intruders entered the apartment where he lived with his mother. The applicant and Evan Wright were charged with his first degree murder. At the conclusion of the preliminary inquiry, on consent, Mr. Wright was committed for trial on first degree murder. Counsel for the applicant conceded that whoever shot and killed Mr. Hall committed first degree murder. As a result, the only issue for the preliminary inquiry justice was whether there was sufficient evidence of identity to commit Mr. Fitzpatrick for trial.
[5] In her ruling, after setting out a summary of her role as preliminary inquiry judge, Jaffe J. summarized the relevant evidence. This included the evidence of Cheryl Hall (the applicant’s mother), the security camera footage (which she indicated she had viewed herself several times), the DNA evidence and the evidence about the applicant’s clothing and that worn by one of the perpetrators.
[6] Jaffe J. concluded that there was sufficient evidence upon which a jury could reasonably conclude that the applicant was both a party to first degree murder and that he was the shooter himself. She specifically considered the exculpatory evidence relied upon by the defence, and concluded that it did not effectively eradicate a reasonable inference of guilt. While she agreed with the applicant that the case was stronger against Mr. Wright than against him, she recognized that it was improper to discharge on the basis of weak evidence if the inferences sought be the Crown were reasonably available on the evidence.
Applicable Legal Principles
[7] The scope of review of a decision of a preliminary inquiry justice to commit for trial is limited. A review by way of certiorari does not permit the court to overturn the decision of a preliminary inquiry justice on the basis of an error of law or if the reviewing court would have reached a different. Rather, the reviewing court may intervene only if the justice has exceeded his or her statutory jurisdiction or has acted in breach of the principles of natural justice: R. v. Russell, 2001 SCC 53 at para. 19, R. v. Deschamplain, 2004 SCC 76 at paras. 12-19;
[8] A preliminary inquiry justice must follow s.548 of the Criminal Code. In cases such as this one, where the prosecution relies on circumstantial evidence, the Supreme Court of Canada explained the responsibility of the preliminary inquiry justice in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 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: see Watt's Manual of Criminal Evidence, supra, at par. 9.01 (circumstantial evidence is "any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue"); McCormick on Evidence, supra, at pp. 641-42 ("[c]ircumstantial evidence ... may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion"). 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.
[9] There is no question a justice commits jurisdictional error if he or she commits an accused to stand trial in the absence of any evidence of an essential element of the offence charged. In such a case, the committal for trial must be quashed: Deschamplain, at para. 29, 33. However, in a circumstantial case, it is the duty of a preliminary inquiry justice to engage in a limiting weighing of the evidence in order to determine whether, when the evidence is viewed cumulatively, an inference of guilt is reasonably available on the evidence as a whole: R. v. Adam, 2012 ONCA 582.
The Errors Alleged
[10] Before turning to the specific errors that the applicant alleges were made by the preliminary inquiry justice, I will address one of the applicant’s overarching arguments: that R. v. Wellington, 2011 O.J. No. 4247 (S.C.J.) is dispositive of the issues on the application. I do not agree.
[11] The first difficulty with the applicant’s position is that the preliminary inquiry justice was required to decide the issue of committal on the basis of the particular facts before her and the available inferences that could reasonably be drawn from those facts. While the jurisprudence assists greatly with the legal principles, when the question to be decided is so fact specific, and relates to inferences that may reasonably be drawn respecting the identification of a perpetrator, another judgment, based on different facts, will rarely be dispositive.
[12] Second, and perhaps more importantly, I do not agree with the applicant that the facts in Wellington are the same as those in this case.
[13] In Wellington, Molloy J. quashed the accused’s committal for trial on charges related to a bank robbery. Significantly, the only evidence linking the accused to the robbery was the presence of his DNA on a hat and scarf located at the nearby Jane Street subway station after the robbery. Justice Molloy concluded that there were two flaws in the preliminary inquiry justice having relied on the presence of the accused’s DNA on the hat and scarf as the evidence of identification supporting committal.
[14] First, Molloy J. concluded that it was not reasonable to infer that the hat and scarf were worn by the robber. She noted that there was some difference between the teller’s description the robber’s clothing and the hat and scarf found, such that while these items of clothing could not be ruled out as having been worn by the robber, neither could it be inferred that they were worn by him. It was significant that they were not found with the robber’s discarded distinctive jacket, which was also located in the subway station. Further, it was impossible to know how long these items had been in the subway station.
[15] Second, Molloy J, found that there was no evidence whatsoever that the accused was wearing those items at the time of the robbery. There was nothing connecting him with the hat and scarf or with the location. Further, because there was DNA from three separate sources on the hat and scarf, there was no basis, Molloy J. concluded, upon which a reasonable jury could conclude that the accused committed this robbery.
[16] The case against the applicant is distinguishable from Wellington because it does not rest entirely on his DNA being on an item found near the scene. The applicant’s DNA was identified on a white latex glove located after the shooting. There was video evidence that a similar glove was worn by one of the perpetrators before the shooting. But, there is additional evidence capable of supporting a reasonable inference that the applicant was one of the people involved in the homicide. That evidence includes the fact that one of the perpetrators, said by the Crown to be the applicant, is seen on video shortly before the homicide wearing both a black Toronto Raptors top with a red logo, similar to one the applicant had been given before the murder and wearing black running shoes with white soles and red laces similar to ones that he wore at the time. In addition, the applicant was the cousin of Evan Wright, the co-accused against whom there was a more compelling case, and who was living with the applicant’s family at the time of the homicide. I see the evidence in this case as significantly stronger than that in Wellington.
[17] The other repeated argument advanced by the applicant is that the preliminary inquiry justice “created evidence” where none existed. I reject this assertion in relation to each of the specific arguments advanced by the applicant. In my view, the preliminary inquiry justice’s reasons disclose that she did not to “create” evidence but, instead, allowed that reasonable inferences could be drawn from it that were contrary to those the applicant says should be drawn. I see no jurisdictional error in the preliminary inquiry justice’s approach.
[18] I will address now the specific areas in which the applicant alleges jurisdictional error on the part of the committing justice.
i) Alleged errors respecting Cheryl Hall’s evidence and the video surveillance evidence as to whether one of the perpetrators had black skin (Ruling paras. 14-17 and 45-46)
[19] The applicant submits that the preliminary inquiry justice “created evidence” by rejecting the exculpatory evidence that one of the perpetrators of the homicide was black. Mr. Wright and Mr. Fitzpatrick are both white men.
[20] The applicant’s mother, Cheryl Hall, was at home at the time the intruders came to the door of her apartment where the deceased was shot. She heard a knock on her bedroom door, got out of bed to open it and as she did so, heard the front door of the apartment being kicked open. She heard shots fired. She closed her door, hid in her closet and called 911. Ms. Hall provided evidence as to what she saw at the time of the shooting and described the shooter.
[21] The applicant says that Ms. Hall was unequivocal that the assailant she saw was a black, unmasked man. It follows, he says, that it could not have been him. He submits that the preliminary inquiry justice created a possibility that Ms. Hall was mistaken when her evidence did not support such a conclusion. He further submits that the preliminary inquiry justice was wrong and misstated the video surveillance evidence when she indicated that she had viewed it and found a portion of the video suggested that neither of the assailants appeared to be black.
[22] Having reviewed the evidence of Ms. Hall, I do not agree that she “unequivocally” described the intruder as a black man without a mask.
[23] In her examination-in-chief, when asked to describe the person she saw, Ms. Hall’s first response was that it was dark and there was no lighting. Asked if she had seen the person’s face, she said that she was in shock and could not describe it. Asked about the person’s hands, she then said that the person “looked black to me, I don’t know if they were wearing a mask or whatever, it was dark, but that’s what I saw. I was in shock.”
[24] Under cross-examination, Ms. Hall adopted her two statements to police as true and accurate. She testified that nothing in them warranted correction. Asked if she recalled the description she had provided to police, Ms. Hall testified, “And I said they were black…But it was dark, they – they probably had a mask on”. While she readily acknowledged having previously said that the person was black, and not wearing a mask, she testified:
They asked me what colour they were, and I said black. That’s what I saw, that’s why I’m saying they probably had a mask on…
[25] Ms. Hall agreed that she had previously said the person was not masked and agreed that she was testifying in the opposite way. Repeatedly, while she agreed that she had said before that the person was black, she testified that it had been dark, that things happened quickly and that she believed the person must have been wearing a mask.
[26] In my view, the preliminary inquiry justice’s summary of Ms. Hall’s evidence, set out in paragraphs 14-17 of her decision, is fair and accurate. It was not the preliminary inquiry justice who created the possibility that Ms. Hall had been mistaken when she said that the intruder was black and unmasked. It was Ms. Hall herself who suggested this.
[27] I do not find Ms. Hall’s evidence to be nearly as clear about the perpetrator’s skin colour as counsel for the applicant suggests. Viewed in totality, it is ambiguous. There are reasonable competing inferences to draw from it. One is that she saw a black man, as she told police. The other is that she saw a black face, believed that the person was black skinned, and that now, given the poor lighting, speed of what happened and her considerable stress, she thinks that the person may have been wearing a mask over his face and that she may have been mistaken about him being black. The inference that Ms. Hall was mistaken in these circumstances, particularly in view of the video of the perpetrators shortly before the shooting wearing black masks, is one that I think is reasonably available. Certainly, it is not speculative. This is an issue for the trier of fact.
[28] The applicant also objects to the preliminary inquiry justice’s assessment, from the video evidence, of the assailant’s skin colour. There are two important video clips taken from outside Brampton Convenience and Royal Beauty stores located at 428 Rutherford Road. They show the two individuals who were conceded to be the perpetrators of the homicide shortly before it occurred. This video evidence was entered into evidence as Exhibit 5.
[29] Officer Borosiu testified that in the video, the individual alleged to be the applicant is wearing black shoes with white soles and red on top and appears to be wearing a black balaclava. He testified that the person appears to him to be lighter skinned. In expressing that view, he relied on the opening of the mask in the eye area up to the eyebrows, which appeared to be a light colour image. In respect of the second individual (alleged to be Mr. Wright), the officer testified that that person’s eye sockets appears “darker” in the video. He did not testify that he believed the second person was black skinned.
[30] The preliminary inquiry justice viewed the video depicting the two perpetrators multiple time and made her own observations. Both parties agree that she was entitled to do so. She was of the view that neither man’s skin colour appeared black in the videos.
[31] The applicant says that it was not open to the preliminary inquiry justice to “create the possibility that the second male had white eye sockets by looking at a micro-portion of the security video”.
[32] I was provided with the same security video, Exhibit 5, and have watched it as well. It is readily apparent that there is a white area around the eyes of the person alleged to be the applicant, who is wearing the black Raptors top. It appears to me that his skin, which can be seen around his eyes in the view of camera 4, is white. While I cannot say that the video is dispositive of the skin colour of the second individual, it also appears to me not to be black.
[33] It was open to the preliminary inquiry justice to conclude from the video that neither of the assailants appeared black. Accordingly, I accept that the preliminary inquiry justice drew the reasonable inference in rejecting the applicant’s position that the videos “indisputably” showed one of the perpetrators was black.
[34] It will be for the trier of fact to assess all of the evidence, including the video evidence of the assailants before the homicide and the description of the perpetrator provided by Ms. Hall, to determine whether one of the assailants was black, and so could not have been the applicant. The preliminary inquiry justice’s consideration of this issue reveals no jurisdictional error.
ii) Alleged errors respecting the DNA on the white latex glove and the yellow/green glove (Ruling paras. 35 and 55)
[35] The applicant submits that the preliminary inquiry justice “created evidence where none existed” in her treatment of the presence of the applicant’s DNA on the inside of a white latex glove located down the street from the shooting scene. The applicant says that the preliminary inquiry justice improperly ignored the fact that there were three DNA profiles on the white glove. The applicant similarly submits that the preliminary inquiry justice “created evidence where none existed” by mis-characterizing the DNA evidence respecting the yellow/green glove located by police in Ashton Park. The applicant’s position is that the trial judge improperly allowed for the possibility that the DNA was his when in fact, asserts the applicant “the DNA on that glove therefore belonged” to Mr. Wright.
[36] To put these arguments in context, it appears that the person alleged to be the applicant (wearing the black Raptors top with the red logo) is wearing gloves. On his left hand is a white glove. On his right hand is a yellow / green glove. The gloves worn in that video are alleged to be the ones located by police after.
[37] Expert witness Melissa Kell testified about the DNA profiles on the gloves.
[38] First, dealing with the white latex glove, Ms. Kell testified that there was a mixture of DNA from three people. The deceased and Mr. Wright were excluded as contributors to the mixture. The applicant could not be excluded.
[39] In my view, while the latex glove had DNA from two other people, the fact that the applicant could not be excluded as one of the contributors, and that Mr. Wright could be, was compelling evidence that it may have been worn by the applicant in the video and at the murder scene. Other inferences are also reasonably available. For instance, it is possible that Mr. Wright was the person wearing the white latex glove in the video and that he did not leave a DNA sample sufficient to generate a profile. That will be for a trier of fact to decide. I do not agree that the preliminary inquiry justice created evidence where none existed or mischaracterized the evidence in any way. She recognized that one reasonable inference to draw from the DNA on the latex glove was that the applicant was wearing it in the video.
[40] Second, in respect of the yellow / green glove, Ms. Kell said that the DNA in the glove was a mixture of three individuals including at least one male. She testified that Evan Wright could not be excluded as a contributor and nor could the applicant. She said, as well, that it was unlikely that the mixture came from the two of them together. The statistics she provided made clear that there was a far greater likelihood that the DNA was from Mr. Wright than from the applicant, though the applicant could not be excluded as a contributor.
[41] The applicant submits that the evidence respecting this glove was exculpatory. He says that Ms. Kell’s opinion was that there was no real possibility other than that Mr. Wright’s DNA was on the glove. As a result, he submits that Mr. Wright must have been the person wearing that glove in the video before the shooting, and that the applicant could not have been.
[42] I see no jurisdictional error in the analysis of the preliminary inquiry justice respecting the DNA on this glove. She recognized, correctly, that while the science could not exclude either Mr. Wright or the applicant as a contributor to the DNA mix in this glove, there was much stronger scientific support for the conclusion that Mr. Wright was the contributor of the DNA on this glove. This was a fair characterization of the DNA evidence.
[43] The preliminary inquiry justice also recognized that this DNA evidence was potentially exculpatory of the applicant, but she could not conclude that it “effectively eradicates reasonable inferences of guilt”. I agree that while the evidence could be exculpatory, in that it could lead a trier of fact to infer that it was Mr. Wright wearing this glove in the video and that he is the person in the Raptors top, that is not the only reasonable inference. It is also reasonable that the applicant was wearing the glove in the video and did not leave on it a DNA sample sufficient to generate a DNA profile. While the presence of Mr. Wright’s DNA certainly confirms his contact with the glove or with something that contacted the glove, the absence of the applicant’s DNA could reasonably mean either that he had no contact with the glove, or that he did not leave a sample of DNA sufficient to generate a DNA profile. In the same way as the applicant suggests that there is more than one reasonable inference available from the presence of his DNA on the latex glove, so, too, is there more than one available inferences from the presence of Mr. Wright’s DNA on this second glove.
[44] In summary, the DNA provides strong evidence that the applicant wore the white latex glove at some point. It also provides compelling evidence that Mr. Wright wore yellow green glove at some point. The same person is seen wearing gloves similar to both of these immediately before the shooting. The DNA, alone, does not answer which person it was. There are reasonable competing inferences to be drawn from this evidence. This is a matter for a trier of fact. The preliminary inquiry justice’s analysis reveals no jurisdictional error in respect of this evidence.
iii) Alleged error respecting the significance of the Mr. Wright having access to the applicant’s home (Ruling para. 36-37)
[45] The applicant suggests that in addressing the fact that he had a black Raptors top and black running shoes with the white soles and red laces, the preliminary inquiry justice ignored the possible inference that Mr. Wright had the opportunity to surreptitiously take and wear the applicant’s clothing, and failed to consider this factor when she weighed the evidence.
[46] Jordana Diamond, the applicant’s stepmother, testified that she had given to him for his birthday, 3 ½ months before the murder, a Raptors sweater that was similar to the one seen worn by one of the assailants shortly before the murder in the surveillance video (a black top with a red Raptors’ logo on front). The applicant’s father, Sean Wright, confirmed that at the time of the murder, the applicant owned black shoes with red laces and confirmed that the ones seen in the video worn by the individual wearing the Raptors sweater were “definitely similar” to the ones the applicant owned.
[47] At the time of the murder, and after it took place, Evan Wright lived in a tent in the backyard of the Wright family home. The applicant relies on Sean Wright’s evidence that he left the home unlocked so that Evan Wright and his family could access the home to suggest that Evan Wright may have taken the clothing belonging to the applicant. While Sean Wright testified that the door was open to Evan Wright’s family, he also said that they did not come into his home a lot. There is no evidence that Evan Wright entered the Wright family home and took the applicant’s Raptors sweater and shoes.
[48] In my view, the preliminary inquiry justice did not ignore important evidence when she considered the significance of the Raptors top and the black running shoes and the available inference that it was the applicant wearing that clothing in the surveillance video. While I accept the possibility that Evan Wight was able to enter the Wright family home to take his cousin’s Raptors top and running shoes, there was no evidence whatsoever that he, in fact, did so. I reject the applicant’s suggestion that the open door gave Evan Wright “equal access” with the applicant to this clothing. The record does not support this contention. I see the inference advanced by the applicant as highly speculative in all of the circumstances. Accordingly, there was no obligation on the part of the preliminary inquiry justice to specifically address this unlikely possibility.
iv) Alleged error in the evidence of association between the applicant and Mr. Wright
[49] Finally, the applicant submits that the preliminary inquiry justice exceeded her jurisdiction in finding evidence of association between the applicant and Evan Wright when there was no such evidence before her.
[50] While there is no question that an accused cannot be found guilty simply because of an association with another person, evidence of association can be relevant to determining facts in issue: R. v. Kamagasivam, 2016 ONSC 2796.
[51] In this case, there was evidence that the applicant and Mr. Wright were cousins, less than two years apart in age, who at some point worked for the same employer. There was also evidence that on the night of the murder, and for a period after, Evan Wright lived in the backyard of the home at which the applicant lived. Ms. Diamond testified that during the period when Evan Wright lived in the back yard, he and the applicant spent some time in the garage hanging out together, though not a lot.
[52] In my view, as a matter of human experience and logic, the evidence that there was some connection, association and trust between Mr. Wright and the applicant made it more probable that the person with Mr. Wright that evening was the applicant than it would have been in the absence of any evidence that the two had any association whatsoever.
[53] The preliminary inquiry justice recognized the limited use that could be made of the evidence of association. She recognized the impermissibility of inferring guilt from association. However, she was correct that this was a factor she could consider when weighing the whole of the evidence to determine whether it supported an inference that the applicant was one of the assailants.
Conclusion
[54] The application for certiorari to quash the applicant’s committal for trial on first degree murder is dismissed. He has already been remanded for a judicial pre-trial on October 6, 2020, which will proceed as scheduled.
Woollcombe J.
Released: September 24, 2020
COURT FILE NO.: CrimJ(P) 307/20
DATE: 2020 09 24
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PHILIP FITZPATRICK
REASONS FOR JUDGMENT ON APPLICATION FOR CERTIORARI TO QUASH COMMITTAL FOR TRIAL ON FIRST DEGREE MURDER CHARGE
Woollcombe J.
Released: September 24, 2020