COURT FILE NO.: CRIMJ(P) 697/21

DATE: 20210614

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. P. Renwick and Mr. P. Maund, for the Crown / Applicant

• and -

PETER REGO

Mr. B. Crothers, for the Accused / Respondent

HEARD: May 21, 2021, by video conference

REASONS FOR DECISION

(Application for Certiorari and Mandamus)

Stribopoulos J.

Introduction

[1] On May 26, 2018, at approximately 10:00 p.m., some friends had gathered to socialize in the garage of a residence in Brampton. Three or four people were in the garage, including Mr. Abdoulkader, and the garage door was open. A car driving past on the street slowed in front of the residence, and someone fired five or six shots from a .40 calibre handgun toward the men in the garage from inside the vehicle. The vehicle then drove off. One of the bullets struck Mr. Abdoulkader while he sat on a chair in the garage. The bullet entered his chest and caused his death.

[2] Mr. Rego was arrested and charged with first degree murder for the death of Mr. Abdoulkader. At his preliminary inquiry into that charge, after the evidence was complete, Mr. Rego conceded committal for second degree murder. However, he maintained the evidence did not justify his committal on a charge of first degree murder. Ultimately, the preliminary inquiry judge agreed. She concluded that the Crown had failed to adduce evidence reasonably capable of supporting a finding of planning and deliberation. As a result, she discharged Mr. Rego for first degree murder but committed him to stand trial on a charge of second degree murder.

[3] The Crown applies for a writ of certiorari to quash the preliminary inquiry judge's decision discharging Mr. Rego on the charge of first degree murder. The Crown submits that the evidence supported a reasonable inference of planning and deliberation and that the judge committed jurisdictional errors in concluding that it did not. If this court agrees, the Crown also seeks a writ of mandamus to remit the case to the preliminary inquiry judge and require her to commit Mr. Rego to stand trial on a charge of first degree murder.

[4] Mr. Rego responds that, based on the evidence, the preliminary inquiry judge did not err in concluding that a reasonable jury properly instructed could not find that he committed a planned and deliberate murder. Alternatively, even if the preliminary inquiry judge erred in coming to that conclusion, Mr. Rego submits that her assessment of the adequacy of the evidence fell squarely within her mandate. As such, he argues, there is no jurisdictional error justifying this court's intervention through certiorari.

[5] For the reasons that follow, the court grants the Crown’s application. On the whole of the evidence, a reasonable jury properly instructed could find that Mr. Rego committed a planned and deliberate murder. With respect, the preliminary inquiry judge’s reasons for discharging Mr. Rego on that charge reveal that she did commit jurisdictional error in arriving at her decision. Accordingly, the case must be remitted to the preliminary inquiry judge for her to commit Mr. Rego to stand trial for first degree murder.

I. The Governing Principles

[6] This part begins by detailing the role of the preliminary inquiry judge when it comes to deciding whether to order an accused committed or discharged for a particular offence charged. It next explains the narrow jurisdictional grounds for reviewing such decisions through certiorari. Finally, it explains the meaning of “planned and deliberate” under s. 231(2) of the Criminal Code, R.S.C. 1985, c. C-46, which elevates murder to first degree murder for sentencing purposes.

(a) The Role of the Preliminary Inquiry Judge

[7] Under s. 548(1) of the Criminal Code, in deciding whether to commit an accused to stand trial or to discharge them, for each charge the accused faces, the preliminary inquiry judge must assess “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080; see also R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 16; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21; R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, at p. 160.

[8] The sufficiency of the evidence is assessed against the governing standard with reference to the ultimate burden on the Crown to prove each element of the offence charged beyond a reasonable doubt: R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at p. 701, McLachlin J. dissenting; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 50; R. v. Turner, 2012 ONCA 570, 292 C.C.C. (3d) 69, at para. 16. That means “the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt”: Fontaine, at para. 53 (emphasis in original).

[9] In assessing the sufficiency of the evidence, the preliminary inquiry judge is not to evaluate the credibility or reliability of the evidence: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 15; Sazant, at para. 18; Arcuri, at paras. 23, 30, 33; R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 153. Qualitative assessments of that nature are reserved exclusively for the trial court: Deschamplain, at para. 15.

[10] The preliminary inquiry judge’s assessment of the evidence takes on a somewhat different character when the Crown’s case depends, at least in part, on circumstantial evidence. If it does, as the Supreme Court of Canada explained in Arcuri, at para. 23, the judge must:

... 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.

[Emphasis in original.]

[11] The potential impact of exculpatory evidence turns on the nature of the Crown’s case. If the Crown has adduced “direct evidence on all the elements of the offence, the case must proceed ... regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true”: Arcuri, at para. 29; see also Sazant, at para. 16.

[12] In contrast, where the Crown’s case relies on circumstantial evidence for proof of an essential element, “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”: Arcuri, at paras. 29. In carrying out that task, the judge does not consider the inherent reliability of the evidence: Arcuri, at para. 30. Instead, the judge’s role is limited to assessing “the reasonableness of the inferences to be drawn from the circumstantial evidence”: Arcuri, at para. 30.

[13] Further, where the circumstantial evidence is reasonably capable of supporting competing inferences, some pointing towards guilt and others against it, the judge cannot choose between them. Instead, “only the inferences that favour the Crown are to be considered”: Sazant, at para. 18. Stated differently, the judge must take the Crown’s case at its highest, accepting the Crown’s evidence as credible and reliable and assuming “the reasonable inferences from the primary facts that are most favourable to the Crown”: R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 7.

[14] Reasonable inferences are those that follow, inductively, from the primary facts, through logical analysis informed by common sense and human experience: United States of America v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.), at para. 7; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37. When engaging in a limited weighing of the circumstantial evidence, as required, the preliminary inquiry judge cannot bridge gaps in the evidence through speculation or conjecture: Jackson, at paras. 7-14; R. v. Wilson, 2016 ONCA 235, at para. 24; Huynh, at para. 7.

(b) Certiorari Review and its Limits

[15] There is no statutory right of appeal against the decisions of a preliminary inquiry judge. The only mechanism for review is the prerogative writs, including certiorari. However, as the Supreme Court of Canada has explained, “certiorari … runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 99; see also R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19.

[16] Although jurisdictional error amounts to legal error, the converse is not true. Every legal error does not constitute jurisdictional error. As the Supreme Court of Canada made clear in Skogman, at p. 100:

...certiorari review does not authorize a superior court to reach inside the functioning of the statutory tribunal for the purpose of challenging a decision reached by that tribunal within its assigned jurisdiction on the ground that the tribunal committed an error of law in reaching that decision, or reached a conclusion different from that which the reviewing tribunal might have reached.

[17] Given these constraints, the reviewing court must show the “greatest deference” to the preliminary inquiry judge’s decision concerning the sufficiency of the evidence: Russell, at para. 48. For example, as the Supreme Court of Canada observed in Deschamplain, at para. 23:

... 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): see Arcuri, supra, at paras. 21-23; Russell, supra, at para. 26. 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: see Russell, supra, at para. 19.

[Emphasis added]

[18] It follows that a preliminary inquiry judge’s conclusions concerning the inferences to be drawn from the circumstantial evidence fall squarely within their jurisdiction and are not reviewable: Turner, at para. 30.

[19] Despite the need for deference, preliminary inquiry judges’ decisions are not immune from review. The decision to either commit or discharge the accused under s. 548(1) of the Code is subject to review through certiorari if it reflects jurisdictional error. Meaning “the preliminary inquiry judge exceeded or declined to exercise his or her jurisdiction in the course of arriving at that decision”: R. v. Manasseri, 2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28.

[20] The Supreme Court of Canada has repeatedly recognized that a preliminary inquiry judge exceeds their jurisdiction if they commit an accused to stand trial in the absence of evidence reasonably capable of establishing an essential element of the offence charged: Skogman, at pp. 104, 106; R. v. Dubois, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366, at p. 376; Russell, at para. 21.

[21] Similarly, the jurisprudence also recognizes that it constitutes jurisdictional error for a preliminary inquiry judge, in deciding between committal or discharge, to:

• Fail to consider the “whole of the evidence” as required by section 548(1)(b) of the Code: see Sazant, at para. 25; Deschamplain, at paras. 18-19, 33; R. v. Kamermans, 2016 ONCA 117, at para. 16; Manasseri, at paras. 28-29.

• Misidentify the offence elements, given that the judge will have failed to fulfill their obligation to assess the sufficiency of the evidence against the actual elements of the offence charged: see Sazant, at para. 25; Kamermans, at para 14; R. v. Barnett, 2013 ONCA 179, at para. 16.

• Prefer an inference favourable to the accused where an inference favourable to the Crown is also available on the evidence: see Sazant, at para. 25; Kamermans, at para 15; Manasseri, at para. 29; R. v. Zamora, 2021 ONCA 354, at para. 33.

• Assess the credibility of witnesses or the reliability of the evidence: see Sazant, at para. 25; Kamermans, at para 15; Zamora, at para. 9.

(c) Planning and Deliberation

[22] Section 231(2) of the Criminal Code provides that “[m]urder is first degree murder when it is planned and deliberate” (emphasis added). The use of the conjunction “and” requires that the murder be both planned and deliberate to qualify as first degree murder: More v. The Queen, 1963 CanLII 79 (SCC), [1963] S.C.R. 522, at pp. 533-34.

[23] The terms “planned” and “deliberate” have been the subject of judicial interpretation and their meaning is now well established: see More, at pp. 533-534; R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, at p. 1084 (adopting the instruction found in R. v. Widdifield (1961), 6 Crim. L.Q. 152 (Ont. S.C.) per Gale J., at p. 153); R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 34. In Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), Watt J. provides a comprehensive definition for both requirements that synthesizes the guidance provided by the case law, at p. 691:

The words "planned" and "deliberate" mean different things.

"Planned" is a word that we often use when talking to other people. It means the same thing here that it does when we say it to others. "Planned" means a calculated scheme or design that has been carefully thought out. The consequences of it have been thought over (weighed) (considered) and sized up.

The plan does not have to be complicated, nor sensible. It may be a very simple plan, one that is quite easy to set up. An important factor is the time it took to develop the plan, not how much or little time it took between developing it and carrying it out. One person may prepare a plan and carry it out immediately. Another person may prepare a plan and wait a while, even quite a while, to carry it out.

A planned murder is one that is committed as a result of a scheme or plan that has been previously formulated or designed. It is the implementation of that scheme or design. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill is not a planned murder.

“Deliberate” is not a word that we often use when speaking to other people. It means “considered, not impulsive”, “carefully thought out, not hasty or rash”, “slow in deciding”, “cautious”.

A deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. The deliberation must take place before the act of murder ... starts. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill is not a deliberate murder.

[Emphasis in original]

[24] It is rarely the case that the Crown will have direct evidence of planning and deliberation at its disposal. Absent a confession, like with all mens rea requirements, proof of planning and deliberation will invariably depend on circumstantial evidence: see Robinson, at para. 36; R. v. Turningrobe, 2007 ABCA 236, 78 Alta. L.R. (4th) 220, at para. 135, per Fraser C.J.A., dissenting, reversed 2008 SCC 17, [2008] 1 S.C.R. 454 (“[s]ubstantially for the reasons given by Fraser C.J.A.”).

[25] With the governing principles summarized, these reasons turn next to the evidence at the preliminary inquiry.

II. The Evidence at the Preliminary Inquiry

[26] At the preliminary inquiry, the court heard evidence over five days. The parties also submitted an agreed statement of facts. By the end of the preliminary inquiry, there was just one live issue, the sufficiency of the evidence concerning planning and deliberation.

[27] The key witness for the Crown was Mr. Mulkhan-Leger. He testified that he was friends with Mr. Rego. They came from the same neighbourhood and spent time together drinking alcohol and smoking marihuana. According to Mr. Mulkhan-Leger, he regularly hung out with Mr. Rego during the month preceding the shooting.

(a) The plan to attend a party

[28] On the day of the shooting, Mr. Mulkhan-Leger testified that he received an invitation to attend a friend's birthday get-together that night at a hotel in Georgetown. He invited Mr. Rego and three other men to join him, “Jerome,” “Markeil,” and Jeromey Simon. Jerome said he had a car and offered to drive them.

[29] Mr. Mulkhan-Leger testified that the five men left Brampton together in a car driven by Jerome shortly before 10:00 p.m. According to Mr. Mulkhan-Leger, Jerome was the driver, Markeil sat in the front passenger seat, Mr. Rego sat in the backseat behind Jerome, and he and Jeromey were also in the backseat. He could not say “for sure” where he was sitting in the back seat but was “pretty sure” he was seated in the middle.

(b) Mr. Rego suggests a detour

[30] Mr. Mulkhan-Leger testified that after setting off for the party in Georgetown, they decided to stop at the liquor store. The liquor store was in a plaza. Mr. Mulkhan-Leger testified that, while at the plaza, Mr. Rego said, “he wanted to go see somebody who lived around the liquor store plaza,” and “to see if someone was home or something like that.” Asked in cross-examination what Mr. Rego said exactly, he testified: “he just wanted – he said he wanted to drive by, see if the guy was home.” Mr. Rego did not mention a particular person’s name.

(c) Mr. Rego directs the driver to the scene of the shooting and tells him to drive by slowly

[31] After they left the plaza, Mr. Mulkhan-Leger testified that Mr. Rego was directing Jerome and telling him which streets to turn on. The men drove somewhere between five and 15 minutes through residential streets. Eventually, they arrived at a street with people gathered in front of a house. Mr. Mulkhan-Leger testified that Mr. Rego told Jerome to drive down that street and to “drive-by like slow, drive by it.”

(d) Mr. Rego fires five or six shots at the people gathered in the garage

[32] Mr. Mulkhan-Leger testified that he could see a “handful” of people standing in front of the garage and on the driveway as they approached the house. As they neared the house, which was on their left, he testified Mr. Rego rolled down his window, leaned out of it and began shooting. He estimated that Mr. Rego fired five or six shots.

[33] Asked if he was surprised when Mr. Rego began shooting, Mr. Mulkhan-Leger testified: “Yeah, because it was random, just – he just randomly did that.” On a few occasions during his testimony, Mr. Mulkhan-Leger described the shooting as “random.” Mr. Mulkhan-Leger testified that he thought Mr. Rego was trying to shoot at the house to scare the people and not that he was trying to hit and kill anyone. However, he acknowledged that Mr. Rego never said anything to him concerning what he was thinking at the time.

(e) Mr. Rego’s ability to see the people in the garage

[34] Mr. Mulkhan-Leger testified that he saw the people at the house begin running when the shooting started. He described one person running towards the house’s front door, but he did not see what the others did in response. Mr. Mulkhan-Leger testified that there were streetlights at the location and lights at the front of the garage. Despite this, he acknowledged being unable to describe the people; for example, he could not tell their race or gender.

[35] The Crown called two witnesses who were in the garage when the shooting occurred. One of them, Kadeem Phillips, resided at the address. And the other, Sukhraj Atwal, was also in the garage at the time. According to their evidence, three or four people were in the garage when the shooting occurred, including the deceased, Mr. Abdoulkader.

[36] Both Mr. Phillips and Mr. Atwal testified that Mr. Abdoulkader was sitting on a chair in the garage at the time of the shooting and that he was the person furthest back from the entrance to the garage. They each also testified the garage door was open at the time of the shooting.

[37] Mr. Phillips testified that the lights were on in the garage. He testified that he could see inside his garage while standing in the street when the lights were on in the garage.

(f) Mr. Rego’s after the fact conduct

[38] After the shots rang out, the driver, Jerome, started driving away quickly. According to Mr. Mulkhan-Leger, Mr. Rego responded by telling him to “slow down ... drive normal and stuff.” They then continued onto Georgetown to attend the party. Mr. Mulkhan-Leger testified that none of them spoke during the drive; he assumed the others were in shock, like him, and just processing what happened.

[39] In Georgetown, Mr. Mulkhan-Leger testified they parked the car. He testified that Mr. Rego said they should leave the vehicle (which was stolen). Before they walked away from the vehicle, he saw Mr. Rego looking “on the floor and stuff” in the area where he had been sitting. The men never returned to the car. A friend of Mr. Mulkhan-Leger’s drove them back to Brampton the next day.

[40] The men attended the get-together at the hotel, where they socialized and drank alcohol. At the party, no one mentioned the shooting. Later that evening, after Mr. Mulkhan-Leger rented a hotel room for the men to sleep in, he testified that they saw a story about the shooting on the news, which reported that someone had died and gave the person’s name.

[41] At that point, Mr. Mulkhan-Leger asked Mr. Rego who the deceased was, and he testified that Mr. Rego said that he did not know the person and that it was “just some random person.” When he asked Mr. Rego why he did it, Mr. Mulkhan-Leger testified that Mr. Rego did not answer. According to Mr. Mulkhan-Leger, a bit later, Mr. Rego told him not to say anything about the shooting and threatened to kill him if he did.

[42] Mr. Mulkhan-Leger testified that he continued to spend time with Mr. Rego in the months following the shooting but that they never discussed it again as though it hadn’t happened.

(g) Evidence concerning the handgun

[43] Mr. Mulkhan-Leger testified that, after the shooting, he saw Mr. Rego put the handgun he used in “his little side bag.” He testified that he had seen Mr. Rego with that bag before but that it had only contained drugs and that he had never seen a gun in the bag. Mr. Mulkhan-Leger testified that he had never seen Mr. Rego with a gun before that night and never saw him with a gun afterwards.

III. The Preliminary Inquiry Judge’s Reasons

[44] The preliminary inquiry judge delivered oral reasons for committing Mr. Rego to stand trial for second degree murder and for discharging him on the charge of first degree murder.

(a) Preliminary inquiry judge summarizes the governing principles and the evidence

[45] The preliminary inquiry judge’s reasons begin with the governing legal principles. She correctly describes the test for committal, acknowledges the need to conduct a limited weighing of circumstantial evidence, the obligation not to choose between competing inferences, and the need to consider the whole of the evidence. Following that, her reasons concisely and accurately summarize the law concerning planning and deliberation. After setting out the applicable legal principles, the preliminary inquiry judge succinctly summarized the evidence at the preliminary inquiry before she turned to her analysis.

(b) Preliminary Inquiry Judge notes the absence of certain evidence

[46] At the outset of her analysis, the preliminary inquiry judge made two general observations about the case against Mr. Rego. First, she noted the absence of any evidence connecting Mr. Rego to the address where the shooting occurred or anyone at that address that night, including the deceased, Mr. Abdoulkader. Second, she noted the absence of any evidence concerning when Mr. Rego came into possession of the firearm used in the shooting.

(c) The preliminary inquiry judge addresses three distinct routes to liability

[47] After that, the preliminary inquiry judge organized her analysis around three issues, which she identified as distinct bases of liability for committing Mr. Rego to stand trial for first degree murder.

• First Issue: Did Mr. Rego plan and deliberate to kill Mr. Abdoulkader?

[48] The preliminary inquiry judge framed the first issue as follows: “Is there evidence from which I can infer the planned and deliberate murder of Mr. Abdoulkader for committal?”

[49] The preliminary inquiry judge indicated that the evidence did not support a reasonable inference that Mr. Rego could have seen Mr. Abdoulkader when firing the gun from inside the car. (In that regard, she appears to have overlooked Mr. Phillips’s evidence that, while standing on the road, he could see into the garage when the lights were on inside it.) The preliminary inquiry judge reasoned that the evidence only supported a reasonable inference that in firing in the direction of the residence, the shooting “was indiscriminate.”

[50] Given this, the preliminary inquiry judge concluded that the evidence could not reasonably support an inference that Mr. Rego “had planned and deliberated the killing of Mr. Abdoulkader or anyone for that matter.”

• Second Issue: Did Mr. Rego plan and deliberate to kill another person and kill Mr. Abdoulkader by mistake or accident?

[51] The preliminary inquiry judge framed the second issue as follows: “Is there sufficient evidence for committal that Mr. Rego planned and deliberated to kill a different specific person at [the residence] but killed Nasser Abdoulkader by mistake or accident?”

[52] The preliminary inquiry judge began her analysis of this issue by referring to the Supreme Court of Canada’s decision in R. v. Droste, 1984 CanLII 68 (SCC), [1984] 1 S.C.R. 208. In Droste, the Supreme Court held that: “planning and deliberation with relation to the killing of a specific person makes the offence first degree murder when in the course of carrying out the plan the accused in fact kills someone else”: at p. 223.

[53] The preliminary inquiry judge concluded that there was a lack of evidence capable of supporting an inference that Mr. Rego “planned and deliberated the murder of someone specific other than Mr. Abdoulkader but ended up killing him by mistake.” In coming to that conclusion, the preliminary inquiry judge again emphasized the absence of any evidence connecting Mr. Rego to the address or any particular person at that location.

• Third Issue: Did Mr. Rego plan and deliberate to kill anyone who happened to be in the garage?

[54] Lastly, the preliminary inquiry judge turned to the third issue, which she framed as follows: “Is there any evidence that Mr. Rego planned or deliberated to kill anyone or more than one person in a class of people, namely the people in the garage [of the address]?”

[55] In formulating this third issue, the preliminary inquiry judge took her lead from the Court of Appeal’s decision in R. v. Dipchand, [1991] O.J. No. 1775 (C.A.). She quoted the decision in Dipchand, wherein the court stated, at para. 9:

It is our opinion that a murder can be planned and deliberate even though an accused did not intend to kill a specific person. It is sufficient if it is proved that an accused planned and deliberated to kill one of a class of persons even though he did not know that the particular victim would be present at the time when and at the place where he intended to carry out the plan about which he had deliberated.

To the same effect, see R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 37 (a decision the preliminary inquiry judge discussed with counsel during submissions).

[56] The preliminary inquiry judge indicated that after “considering the totality of the evidence,” she was unable to conclude “that there is any evidence upon which a properly instructed jury, acting reasonably, could find that Mr. Rego committed a planned and deliberate murder.” The preliminary inquiry judge explained that conclusion by making three observations concerning what she viewed as shortcomings in the Crown’s case.

[57] First, the absence of evidence concerning when Mr. Rego acquired the gun. The preliminary inquiry judge noted that acquiring “an illegal firearm takes effort and determination.” However, she correctly pointed out that not all shootings that result in death are first degree murder. As Nordheimer J., as he then was, observed, “While the use of a handgun can provide evidence of an intention to kill, possession, by itself, does not provide evidence of a plan to kill”: R. v. Lincoln, 2015 ONSC 1247, at para. 24 (emphasis in original); see also R. v. McIntosh, 2016 ONSC 7250, at para. 19; R. v. Campbell, 2020 ONCA 221, at para. 44-45. The preliminary inquiry judge noted that it would be “entirely speculative” to infer that Mr. Rego obtained or possessed the gun to carry out a planned and deliberate murder.

[58] Second, the preliminary inquiry judge noted that there is a difference between having an opportunity to plan and deliberate and proof of planning and deliberation: see Robinson, at para. 40; R. v. McKenzie, 2018 ONSC 2006, at para. 32; R. v. Quesnel (1991), 1991 CanLII 11938 (MB CA), 4 C.R. (4th) 118 (Man. C.A.), at para. 18.

[59] Finally, the preliminary inquiry judge acknowledged that “post offence conduct can provide some evidence to assist the trier of fact in drawing inferences as to planning and deliberation.” In making that observation, the preliminary inquiry judge was again on firm legal ground: see R. v. Morin, 2021 ONCA 307, at para. 49; R. v. McCullough, 2021 ONCA 71, 154 O.R. (3d) 171, at para. 43; R. v. Khan, 2007 ONCA 779, 230 O.A.C. 174, at para. 5; R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.), at paras. 14-15. However, she explained why she did not think such an inference was available in the particular circumstances of this case:

In this case however I find the post offence conduct evidence to be of no assistance in that regard. It is the theory of the Crown that Mr. Rego planned and deliberated the killing of Mr. Abdoulkader and concealed that plan from the others in the Ford Fusion so that they would unwittingly take him where he needed to go to execute that plan. In my view, suddenly opening fire at a residence while in the company of people who are unapprised and eyewitnesses speaks to a lack of plan. Once the shooting had been done the fact that Mr. Rego told the driver to drive normally lends nothing to the assessment.

[Emphasis added.]

[60] It would appear that these three reasons provided the basis for the preliminary inquiry judge’s ultimate conclusion: “that there is insufficient evidence to put Mr. Rego on trial for first degree murder.” Accordingly, she discharged Mr. Rego for that charge but committed him to stand trial for second degree murder.

IV. Analysis

[61] There was no evidence that Mr. Rego had a connection to, let alone a motive to harm, any of the people gathered in the garage on the night of the shooting. Accordingly, there was only one viable basis for committing him to stand trial for first degree murder. The evidence had to be capable of supporting a reasonable inference that Mr. Rego planned and deliberated to kill anyone who happened to be outside of the residence: see Dipchand, at para. 9; Ching, at para. 37.

[62] As noted, in rejecting that the evidence supported Mr. Rego’s committal on that basis, the preliminary inquiry judge indicated that she had considered “the totality of the evidence.” Nevertheless, the analysis the preliminary inquiry judge undertook, in the section of her reasons analyzing what was, in the circumstances, the only viable route to liability for first degree murder, suggests otherwise.

[63] In that part of her decision, the preliminary inquiry judge cited three reasons for her conclusion, each relating to what she saw as shortcomings in the evidence. First, there was no evidence concerning when Mr. Rego acquired the gun used in the shooting. Second, evidence of an opportunity to plan and deliberate is not the same as evidence of planning and deliberation. Finally, she explained why she thought Mr. Rego’s after-the-fact conduct, which she described as involving him telling “the driver to drive slowly,” did not support an inference of planning and deliberation.

[64] Respectfully, it is not apparent from the preliminary inquiry judge’s reasons that, as required by s. 548(1)(b) of the Code, she considered the “whole of the evidence” against the relevant legal standard. Had the preliminary inquiry judge done so, one would expect at least some reference to all the relevant evidence in that section of her reasons where she considered the only viable route to liability for first degree murder.

[65] Instead, the preliminary inquiry judge only highlighted what she saw as weaknesses in the Crown’s case in that crucial part of her reasons. And, to the extent that she referenced the actual evidence, she did so only incompletely, i.e., the after-the-fact conduct. The whole of the evidence, briefly summarized, included:

• That Mr. Rego, at some point before the drive, armed himself with a loaded .40 calibre handgun and decided to bring it with him on the drive to the party. (The evidence suggested he did not have that gun in the period before or after the shooting.)

• That the drive into the residential neighbourhood took place at Mr. Rego’s instigation, with him saying he wanted to “see if someone was home or something like that” or “to drive by, see if the guy was home.”

• That Mr. Rego directed the route, and Jerome (the driver) followed his instructions in arriving at the residence where the shooting occurred.

• When they turned onto the street, and people were visible out front of the house, Mr. Rego directed Jerome to “drive-by like slow, drive by it.”

• That as they neared the home, Mr. Rego lowered his window, leaned out of it, and fired five or six shots in the direction of the people gathered there.

• At the time, the lights were on in the garage, and someone in the street could see into the garage (suggesting that Mr. Rego would know that he was firing at people rather than into an empty garage).

• That, after the shooting, when Jerome started driving quickly, Mr. Rego told him to “slow down ... drive normal.”

• After they parked in Georgetown, Mr. Rego suggested that they leave the car. Before doing so, he looked into the car where he had been sitting – suggesting that he might have been looking for physical evidence, like shell casings.

• That Mr. Rego continued with the evening as though nothing had happened.

• That Mr. Rego threatened to kill Mr. Mulkhan-Leger if he told anyone about the shooting.

[66] Based on this collection of evidence, a reasonable jury might ultimately conclude that Mr. Rego made a sudden impulsive decision, without prior consideration, to begin shooting indiscriminately at the people gathered at the garage. At the same time, the whole of the evidence was also reasonably capable of supporting an alternative inference; that Mr. Rego committed a planned and deliberate murder.

[67] In that regard, the jury would have to consider not just the circumstances immediately surrounding the shooting but everything that Mr. Rego said and did both before and afterwards. That includes his decision to bring a loaded firearm with him for the drive to the party. That Mr. Rego instigated the detour into the residential neighbourhood. His comments that he wanted to see if a “guy was home.” During the drive, he directed the vehicle to the street where the shooting occurred. After they arrived on the street and people were visible out front of the house, his instruction to “drive-by, like slow.”

[68] Additionally, there are Mr. Rego’s words and actions in the aftermath of the shooting. He was calm, cool, and collected. Immediately telling the driver to “slow down” and “drive normal.” Suggesting they abandon the car in Georgetown. Before they did so, appearing to check the vehicle for potential evidence of the crime. He said nothing about the shooting at the party that evening, acting as if nothing had happened. Finally, he threatened to kill Mr. Mulkhan-Leger if he told anyone about the shooting. All of which, taken together, is somewhat inconsistent with how one might anticipate a person who was unexpectedly involved in a shooting to behave.

[69] Although the evidence supporting a charge of first degree murder was circumstantial, its cumulative effect provides a reasonable basis for inferring that Mr. Rego did not just make a spur-of-the-moment decision to shoot at the people gathered in the garage. The whole of the evidence reasonably supports an inference that his decision to do so was the product of at least some planning and deliberation. Therefore, I must respectfully disagree with the preliminary inquiry judge’s conclusion that the evidence did not justify Mr. Rego’s committal to stand trial for first degree murder.

[70] Of course, just because this court disagrees with the ultimate conclusion reached by the preliminary inquiry judge does not, on its own, justify the issuance of certiorari. As the Supreme Court has noted, “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”: Deschamplain, at para. 23.

[71] To be sure, a preliminary inquiry judge “is not required to render extensive reasons”; nevertheless, the judge’s reasons “must demonstrate that he or she met the statutory and mandatory duty to consider the whole of the evidence.”: Deschamplain, at para. 34 (emphasis added).

[72] In this case, with the greatest of respect for the preliminary inquiry judge, although she indicated that she considered the “totality of the evidence” in deciding to discharge Mr. Rego on the charge of first-degree murder, her reasons for doing so fail to demonstrate that she did.

Conclusion

[73] For these reasons, the court grants the Crown’s application for certiorari and mandamus. This court sets aside the preliminary inquiry judge’s decision discharging Mr. Rego on a charge of first degree, remits the case to the preliminary inquiry judge, and directs her to commit Mr. Rego to stand trial on a charge of first degree murder.

“J. Stribopoulos J.”

COURT FILE NO.: CRIMJ(P) 697/21

DATE: 20210614

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

PETER REGO

REASONS FOR DECISION

Stribopoulos J.

Released: June 14, 2021