Isaiah Picody-Naveau v. Her Majesty the Queen
COURT FILE NO.: 20-19805
DATE: 2021/04/28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Isaiah Picody-Naveau v. Her Majesty the Queen
BEFORE: Justice Marc R. Labrosse
COUNSEL: Ewan Lyttle and Brett McGarry, Counsel for the Applicant/Accused
Fara Rupert and Devin Harm, Counsel for the Crown
HEARD: March 8, 2021
PUBLICATION IS BANNED PURSUANT TO S. 539 OF THE CRIMINAL CODE WITH RESPECT TO THE EVIDENCE TAKEN AT THE PRELIMINARY HEARING WHICH SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY UNTIL THE TRIAL IS ENDED
RULING ON APPLICATION TO QUASH COMMITTAL
[1] Mr. Picody-Naveau makes an application for certiorari to quash an order to stand trial on one count of second-degree murder made by Justice Dorval on November 20, 2020.
Background
[2] On March 19, 2020, the Applicant took the bus to the market area of Ottawa with two friends, Tyler Richard and Jesse Morton. After making a few stops, the three men arrived at The Shepherd’s of Good Hope, a homeless shelter located at 230 Murray Street. Their journey down to the shelter is captured on various video surveillance clips.
[3] At approximately 2:00 p.m., the Applicant was standing outside the shelter with a group of individuals and started to converse with the victim, 58-year-old Gholam Alisalehie. At one point, Mr. Alisalehie began to walk away and appeared to be called back by the Applicant. A fight broke out between the Applicant and Mr. Alisalehie, punches were thrown and the two men began to grapple while standing. At this time, Mr. Richard pulled a construction saw (also known as a drywall knife) from his right-hand sleeve and began stabbing the victim in the back while the Applicant continued to grapple with him.
[4] Mr. Richard first stabbed the victim with one hand and then re-gripped the knife with two hands which allowed him to stab the victim in the back using more force with a two-handed grip. At the time Mr. Richard stabbed the victim, the victim was bent forward and being held by the Applicant such that Mr. Richard was in the Applicant’s line of sight over the victim’s back. Mr. Richard stabbed the victim a total of four times.
[5] The victim fell to the ground and Mr. Richard walked up to him, kicked him and then ran off. The Applicant walked away, looking back at the victim once. Mr. Alisalehie died from his injuries.
[6] The entire altercation was caught on surveillance video. The quality of the video is very clear. The stabbing itself, from start to finish, lasted about 4 seconds.
[7] On March 21, 2020, Mr. Morton, a friend of the Applicant and a witness to the events, provided a video statement to the Ottawa Police Service.
[8] The Applicant was charged with second degree murder. The Crown theory is that the Applicant is culpable for murder as a party to the offence pursuant to s. 21 of the Criminal Code.[^1]
The Preliminary Hearing
[9] The Preliminary Hearing was held over three days from November 4-6, 2020. Justice Dorval issued written reasons which were released on November 20, 2020.
[10] At the Preliminary Hearing, the identity of the Applicant was admitted and the Crown adduced a real-time and slow-motion version of the video that captured the offence.
[11] Mr. Morton’s video statement was tendered at the Preliminary Hearing for the truth of its contents under s. 540(7) of the Criminal Code. Mr. Morton was cross-examined. As per his statement, Mr. Morton testified that immediately after the stabbing, he left the scene with the Applicant who was in shock about what happened. The Applicant said that he thought it would only be a fight and that he did not want the stabbing to happen. A transcript of Mr. Morton’s video statement was filed at the Preliminary Hearing.
[12] The Crown also called James McManus at the Preliminary Hearing, but his evidence was only admissible against the co-accused, Mr. Richards.
[13] The preliminary hearing judge correctly stated the law to be applied from United States of America v. Shephard[^2] and particularly the law surrounding circumstantial evidence from R. v. Arcuri.[^3]She also reviewed the elements of party liability.
[14] In her review of the facts, the preliminary hearing judge provided an accurate review of the relevant facts including the exculpatory evidence of Mr. Morton. That video statement and transcript of the video statement were filed as Exhibit 13 of the Preliminary Hearing. She also identified the position of the Applicant that there was no evidence of either actus reus or mens rea, either direct or circumstantial.
[15] The preliminary hearing judge analysed the evidence of actus reus from what she saw on the video. She highlighted that the video shows the Applicant holding the neck of the victim and concluded that it would be open to a jury to conclude that the Applicant’s assault and continued grappling of the victim assisted Mr. Richards in stabbing he victim.
[16] The preliminary hearing judge then moved on to the necessary mens rea to aid and abet and properly stated that to establish mens rea, the Applicant would have to have noticed Mr. Richards during the 4 seconds during which the stabbing takes place and realized Mr. Richards intention to kill. He would then have to form the intent to continue to hold the victim to assist Mr. Richards in his endeavor.
[17] The preliminary hearing judge concludes by stating that she does not actually think that there was sufficient time for the Applicant to form the necessary mental intent but acknowledges that this is not the test. She identifies that if there had been only one or two stabbing motions, the inference leading to mens rea would be unreasonable. However, given the total number of motions of stabbing and the two-handed motion to stab, she concluded that there was logical reasoning that could lead to a reasonable inference of mens rea. She therefore committed the Applicant on second-degree murder.
Issues
[18] The Applicant raises that the preliminary hearing judge exceeded her jurisdiction by failing to consider the whole of the evidence as it related to the mens rea element of the offence of murder or manslaughter. He states that she failed to consider the Crown-led exculpatory statement of the Applicant made to Mr. Morton that directly related to the mens rea of the offence in the analysis.
[19] Had the preliminary hearing judge considered that evidence in conjunction with the rest of the evidence, the Applicant submits that she could not have concluded that a properly instructed jury acting reasonably could convict on the mens rea element of the offence.
Applicable Law
[20] It is well known that the purpose of the preliminary hearing is to ensure that there is sufficient evidence to commit an accused to trial.
[21] The scope of review on certiorari is limited to determining if there has been a jurisdictional error. The jurisdiction of the preliminary hearing judge to commit or discharge is contained in s. 548(1) of the Criminal Code:
548 (1) When all the evidence has been taken by the justice, he shall
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
[22] The Supreme Court of Canada in R. v. Deschamplain set out the role of the preliminary hearing judge who must determine whether or not to commit an accused of a particular offence:
The jurisprudence of this Court leaves no doubt that a preliminary inquiry judge commits a jurisdictional error by committing an accused for trial under s. 548(1)(a) when an essential element of the offence is not made out.... Conversely, it is not a jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b).... In that situation, it would be improper for a reviewing court to intervene merely because the preliminary inquiry judge's conclusion on sufficiency differs from that which the reviewing court would have reached.[^4]
[23] The task of the preliminary hearing judge is to assess the elements of the offence and determine if the Crown has presented direct evidence on each element of the office. Where the Crown has not done so and relies on circumstantial evidence, the judge is required to engage in a limited weighing of the evidence because with circumstantial evidence, there is an inferential gap between the evidence and the matter to be established[^5]
[24] Thus, the Supreme Court of Canada distinguished between the duty of the preliminary hearing judge in circumstances where the Crown relies on direct evidence with respect to the essential elements of the offence and where the Crown seeks a committal on the basis of circumstantial evidence.^6
[25] When the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial regardless of the existence of defence evidence. Conversely, when the Crown's evidence consists entirely of, or includes, circumstantial evidence, the preliminary hearing judge must engage in a limited weighing of the whole of the evidence to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt.[^7]
[26] The task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. Instead, it should be regarded as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.[^8]
[27] It is, however, a jurisdictional error for a preliminary hearing judge to commit an accused to trial where there is no evidence on an essential element of the charge.[^9]
[28] In R. v. Russell[^10], the Supreme Court of Canada held that certiorari will issue where the preliminary hearing judge acted in excess of her jurisdiction. This includes committing for trial where there is no evidence of an essential element of the offence. However, the court added that the reviewing court owes the great deference to the preliminary hearing judge’s determination of the sufficiency of evidence: Russell at para. 48.
Analysis
[29] My review of the Reasons for Judgment allows me to conclude that the preliminary hearing judge performed a proper review of the totality of the evidence. She summarized the evidence from the preliminary hearing and then went through the evidence from the video surveillance.
[30] As part of the preliminary hearing judge’s review of the evidence are paras. 4-6 of her Reasons for Judgment which focus specifically on Mr. Morton’s evidence. The total review of the evidence is limited to eight paragraphs and as such, Mr. Morton’s evidence was not far from her analysis. While she highlighted that she would focus on the surveillance video, it is clear that the preliminary hearing judge was alive to Mr. Morton’s evidence and particularly the evidence of no prior plans to fight, that the Applicant was in shock after the stabbing, and that the Applicant told him he thought it was just going to be a fight.
[31] The video statement and the transcript were also filed as Exhibit 13 and this exhibit was specifically referred to in the decision.
[32] The preliminary hearing judge’s analysis of the essential elements focused on the actus reus and the mens rea. This analysis is found from paras. 28 to 31 of the Reasons. I am unable to agree with the Applicant that because the preliminary hearing judge did not refer to Mr. Morton’s evidence again in the analysis portion of her Reasons, this would suggest that she ignored it.
[33] The analysis of the Court of Appeal for Ontario in R. v. Turner[^11] is particularly instructive on this issue to the extent that the preliminary hearing judge’s reasons do not need to reflect a verbalization of the entire process engaged in to reach a conclusion. The fact that the preliminary hearing judge did not repeat Mr. Morton’s exculpatory evidence is not a sign that she failed to consider the evidence as a whole. To the contrary, I am of the view that Mr. Morton’s evidence simply did not sway her away from that which she could clearly see in the video surveillance.
[34] It is also noteworthy that para. 27 of the Reasons references that there was no evidence of the Applicant’s prior knowledge of Mr. Richards’ intent to stab anyone. This finding comes at least in part from Mr. Morton’s evidence that there were no plans to get into a fight. This confirms that the preliminary hearing judge was alive to Mr Morton’s evidence and that it formed part of her analysis.
[35] The preliminary hearing judge was also alive to the limits of her ability to weigh the evidence. She highlighted that she was of the view that there was insufficient time for the mental process of the Applicant to take place within the 4 seconds attributed to the stabbing incident. However, she properly stated the caselaw directs her to only determine whether it would be reasonable for a jury to do so. She then focused on the inference of mens rea that comes from the Applicant holding the victim down with his hand while Mr. Richards stabs him with a two-handed motion.
[36] Clearly, one cannot argue that there is no evidence of an inference of mens rea. The video surveillance clearly shows a limited point in time when the Applicant and Mr. Richards are essentially face to face with the victim being held down by the Applicant and bent forward. This is the moment when Mr. Richards proceeds to stab the victim an additional three times with a two-handed grip. The question is if the exculpatory evidence of Mr Morton renders that inference of mens rea unreasonable.
[37] In para. 30 of her Reasons, the preliminary hearing judge properly explains the path to the inference of mens rea being sought by the Crown and demonstrates her understanding of the analysis required of the circumstantial evidence of mens rea.
[38] Paragraph 31 is the conclusionary paragraph where the preliminary hearing judge states her opinion and demonstrates that she was alive to her duty of assessing the reasonability of the inference of mens rea. She did not repeat Mr. Morton’s exculpatory evidence which confirms that it did not impact the reasonableness of the inference of mens rea that she could see from the surveillance video.
[39] Finally, the preliminary hearing judge demonstrated her understanding of having to assess the reasonableness of the inference of mens rea. She properly states that if the evidence was limited to the initial one or two stabbing motions, the inference of mens rea would have been unreasonable. However, the additional stabbing motions and the two-handed grip make the inference of mens rea a reasonable one.
[40] I am satisfied that the preliminary hearing judge made no error in her consideration of the whole of the evidence in her written decision. Her analysis clearly satisfies the Sheppard test.
Disposition
[41] In the result, I dismiss the application for certiorari. The Applicant will stand trial on the charge of second-degree murder.
Justice Marc R. Labrosse
Date: April 28, 2021
COURT FILE NO.: 20-19805
DATE: 2021/04/28
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Isaiah Picody-Naveau v. Her Majesty the Queen
BEFORE: Justice Marc R. Labrosse
COUNSEL: Ewan Lyttle and Brett McGarry, Counsel, for the Applicant/Accused
Fara Rupert and Devin Harm, Counsel, for the Crown
Ruling on application to quash Committal
Justice Labrosse
Released: April 28, 2021
[^1]: Criminal Code, R.S.C. 1985, c. C.-46 (“Criminal Code”).
[^2]: United States of America v. Sheppard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at pp. 3 and 10.
[^3]: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 23.
[^4]: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23.
[^5]: R. v. Arcuri supra note 3.
[^7]: R v. Arcuri, supra note 3 at para. 30
[^8]: R v. Arcuri, supra note 3 at paras. 29-30
[^9]: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 16.
[^10]: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48.
[^11]: R. v. Turner, 2012 ONCA 570, at para. 27.