COURT FILE NO.: CR-22-30000101-00MO DATE: 20230609

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MICHAEL ROBERTS

Counsel: P. Garcia, for the Crown J. Goldlist, for Mr. Roberts

HEARD: 6 April 2023

S.A.Q. AKHTAR J.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] On 25 October 2020, Jason Sudomericky was shot in the parking lot of an LCBO store located in Scarborough and died of his injuries. The police arrested Michael Roberts as the person responsible for his death.

[2] On 22 October 2021, Mr. Roberts was committed to stand trial on the charge of first degree murder on the basis that he planned and deliberated Mr. Sudomericky’s death before killing him.

[3] Mr. Roberts applies for certiorari, arguing that the preliminary inquiry judge committed a jurisdictional error by finding evidence of planning and deliberation when none existed.

[4] He asks this court to quash the committal for first degree murder and issue an order of mandamus, directing the preliminary inquiry judge to commit the applicant to stand trial for second-degree murder.

Background Facts

[5] On 25 October 2020, the applicant and Mr. Sudomericky were waiting to pay at the checkout in the LCBO store located at 3111 Danforth Avenue in Scarborough. An argument began. Witnesses described Mr. Sudomericky as being angry because he felt the applicant was standing too close. Mr. Sudomericky behaved aggressively telling the applicant to “back the fuck up”. After the applicant did so, the two men continued to stare at each other.

[6] After paying for his purchases, Mr. Sudomericky proceeded through the checkout area and left the store.

[7] The applicant was accompanied by a female, Jaliyah Costain-Williams, who testified that Mr. Sudomericky told the applicant “watch when you come outside”. However, this comment was heard by none of the other witnesses.

[8] When it was his turn to pay, the applicant placed cash on the sales counter and abruptly left the store leaving Ms. Costain-Williams to complete the transaction and collect the paid for items, telling her to meet him outside. However, another witness, testified that the applicant told Ms. Costain-Williams, “I’ll be back”.

[9] Video evidence shows that as he exited the store, the applicant unzipped a satchel he was carrying, looked into it, and placed his right hand completely inside, keeping it there before walking off screen. When the applicant left the store, he appeared to walk in the same direction as Mr. Sudomericky. The preliminary inquiry judge held that the video showed the applicant’s right arm to be placed at an angle to his body with his left arm down.

[10] Mr. Sudomericky was followed into the parking lot by Padraig Cullen, another shopper returning to his car. Mr. Cullen testified that he saw Mr. Sudomericky look back in the direction of the LCBO. When Mr. Cullen turned around, he saw the applicant coming out of the store. Mr. Sudomericky walked past Mr. Cullen and up to the applicant uttering words to the effect of “why aren’t you chirping now?” and “why aren’t you a tough guy now”.

[11] Mr. Cullen did not hear the applicant respond, but saw him point a gun at Mr. Sudomericky who responded by crying out “no, no, no,” and running. Mr. Cullen saw the applicant chase Mr. Sudomericky and shoot him in the back from a distance of approximately 10 to 15 feet. After doing so, the applicant slowly walked back to his car in a “calm” manner and left the scene.

[12] When police were called, they found and seized a 9 mm cartridge casing. A knife with Mr. Sudomericky’s DNA was found near his body. Mr. Sudomericky’s blood was located in various areas. He was transported to the hospital but died soon after arrival.

[13] At the preliminary inquiry, Ms. Costain-Williams testified that Mr. Sudomericky had been the aggressor in the parking lot and carried a knife. When asked about what had happened in the lot, Ms. Costain-Williams said she had been in shock and “didn’t know”.

The Preliminary Inquiry Judge’s Reasons

[14] The applicant conceded there was sufficient evidence of second degree murder for committal purposes. However, he argued there was no evidence of or any basis to commit on first degree murder.

[15] The preliminary inquiry judge recognised that committal on first degree murder depended on a finding of some evidence of planning and deliberation pursuant to s. 231(2) of the Criminal Code. She concluded that the cumulative evidence of the applicant’s interaction with Mr. Sudomericky and his conduct following their argument to be a sufficient basis for committal of first degree murder.

Positions of the Parties

[16] The applicant argues the preliminary inquiry judge exceeded her jurisdiction in finding that the applicant had planned and deliberated Mr. Sudomericky’s death.

[17] He submits that the brevity of time between the initial altercation and the checkout and shooting, as well as Mr. Cullen’s evidence that it was Mr. Sudomericky who initiated the confrontation outside the store demonstrates that this could only have been an impulsive killing rather than one that was planned and deliberated.

[18] The respondent, on the other hand, submits there are sufficient inferences that permit committal on first degree murder. The respondent asks this court to consider the applicant’s abrupt exit from the LCBO, his following Mr. Sudomericky outside the LCBO, and the video evidence displaying the applicant’s hand inside his satchel. The respondent says that this evidence along with the applicant’s immediate use of the firearm when Mr. Sudomericky approached him outside the store, and the applicant’s calm departure from the scene, is sufficient evidence of planning and deliberation.

LEGAL PRINCIPLES

Jurisdictional Error

[19] The Criminal Code provisions relating to committal can be found in subsection 548(1), which reads as follows:

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.

[20] If there is sufficient evidence of the criminal charges upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit an accused person to stand trial on those charges: United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080. The threshold at the preliminary inquiry stage is not high: the test is whether there is “any evidence” on which a jury, properly instructed, could return a guilty verdict: R. v. Wilson, 2016 ONCA 235, at para. 21.

[21] A preliminary inquiry judge is not permitted to weigh the evidence or make credibility findings. If the Crown has adduced direct evidence on all elements of the offence, the preliminary inquiry judge must commit the accused even in the face of exculpatory evidence: R. v. Arcuri, [2001] 2 S.C.R. 828, at para. 29.

[22] An application for certiorari does not involve the reviewing judge substituting their decision for that of the preliminary inquiry judge. Upon review, the preliminary inquiry judge’s decision may only be interfered with if a jurisdictional error is shown: R. v. Manasseri, 2010 ONCA 396, at para. 28. The test is whether there is a “scintilla of evidence” upon which the preliminary inquiry could conclude that committal is justified: R. v. Martin, [2001] O.J. No. 4158 (C.A.), at para. 3.

[23] However, there is a distinction when the Crown relies upon circumstantial evidence to justify committal. In these circumstances, the preliminary inquiry judge is permitted to engage in a “limited weighing” exercise. When they do so, the judge does not draw inferences from facts or assess credibility, but evaluates “the reasonableness of the inferences to be drawn” from the circumstantial evidence: Arcuri, at paras. 29-30. Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: Wilson, at para. 24; R. v. Sazant, [2004] 3 S.C.R. 635, at para. 18.

[24] If there is no evidence on an essential element of the charge, it is a jurisdictional error to commit an accused for trial: United States of America v. Shephard, at p. 1080. It is also important to note that, on review, the preliminary inquiry judge’s determination of the sufficiency of evidence is entitled to the greatest deference: R. v. Russell, [2001] 2 S.C.R. 804, at para. 48.

Planned and Deliberate

[25] Section 231(2) of the Criminal Code states:

A "planned" murder must be the product of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. A “deliberate” murder is "considered", "not impulsive", "slow in deciding", "cautious", which means that the accused must take time to weigh the advantages and disadvantages of his intended action: R. v. Nygaard, [1989] 2 S.C.R. 1074, at p. 1084; R. v. Campbell, 2020 ONCA 221; R. v. Robinson, 2017 ONCA 645, at para. 34.

[26] A short period of time may be sufficient for someone to plan and deliberate a murder: R. v. Weese, 2010 ONSC 3589, at para. 17; R. v. Plewes, 2000 BCCA 278, at para. 35; R. v. Newman, 2010 ONSC 6009, at para. 33. There is no need for evidence of verbal conduct regarding intention to be adduced by the Crown in demonstrating planning and deliberation. An accused’s conduct can form the basis for deciding whether sufficient evidence exists: R. v. Bigras, at para. 12.

[27] As noted by the Court of Appeal for Ontario in R. v. Smith, 2014 ONCA 324, at para. 29, the plan “need not be complicated but if the murder is committed on sudden impulse without consideration, it will not be a planned and deliberate murder, even though it is an intentional killing”.

ANALYSIS

Is There Some Evidence of Planning and Deliberation?

[28] The applicant concedes that he was properly committed on the charge of second degree murder. Both parties agree that the central question is whether there was a scintilla of evidence of planning and deliberation.

[29] Although I have set out the judge’s reasons for committing the respondent, the task of this court is to determine whether there was any evidence of planning and deliberation adduced by the Crown at the preliminary inquiry.

[30] The judge found the following facts:

• Mr. Sudomericky was the primary aggressor in the confrontation which began at 5:26:08 p.m.
• Both Mr. Sudomericky and the applicant were clearly angry with each other, glaring and staring each other “up and down”
• There was a 1 minute 10 second delay between the victim beginning the altercation and leaving the cash desk area at 5:27:20
• The applicant was seen to remain calm
• The applicant left the cash area prematurely, at 5:27:42 leaving money for Ms. Costain-Williams to pay for and collect the bottles of wine in his absence
• The applicant peered into his satchel, stuck his hand in, moved something around and kept his hand inside the satchel as he walked outside
• The applicant left the store just after 5:27:48
• When outside the store, the applicant walked in the same direction as the victim with his right arm at an angle away from his body
• The victim who was walking away stopped turned around and glared backwards in the direction of the LCBO before walking back towards the applicant making utterances such as “why aren’t you a tough guy now?”
• The applicant’s “immediate response” was to produce his gun and point it directly at the victim
• After the gun was drawn, the victim shrieked “No” and ran chased by the applicant who shot him in the back
• The time of the shooting was around 5:28:26
• After the shooting there was no panicked attempt to flee - the applicant remained calm walking to his car and driving away

[31] Absent a misapprehension of evidence, these are findings to which I must defer to when determining whether the judge committed jurisdictional error. The applicant takes issue with the preliminary inquiry judge’s reasoning as based on speculation and not evidence. I cannot agree.

[32] The preliminary inquiry judge identified the various strands of evidence and drew a reasonable inference from them.

[33] There was clearly evidence of an intention to kill the victim. The applicant chased and shot the victim in the back from a distance of approximately 15 feet, conduct which must give rise to an inference that the applicant intended to kill the victim. This is not a case like R. v. Rajanayagam, [2001] O.J. No. 393 (Ont. Sup. Ct.) at paras 17-18; aff’d, R. v. Rajanayagam, [2001] O.J. No. 3236 (ONCA), relied on by the applicant, where the accused shot the victim in the calf three times.

[34] As noted, the central question in this case is whether there is some evidence of planning and deliberation to kill the victim. This question is contextual and depends upon the circumstances of each case. Even though there may be other inferences to be drawn from the evidence, the preliminary inquiry judge had to draw the available reasonable inferences most favourable to the Crown.

[35] Here, the preliminary inquiry judge found that there was evidence of planning and deliberation based on the applicant’s hasty departure from the LCBO, grasping a firearm as he did so, and following the victim as he left the store to go into the parking lot.

[36] In this case, it was open to the judge to draw the inference that by leaving the checkout area before payment was complete and keeping an eye on the victim, the applicant was interested where and in which direction Mr. Sudomericky was going to follow him. Further, the judge’s finding that the applicant headed in the same direction as Mr. Sudomericky also supports the inference that he was following Mr. Sudomericky.

[37] The applicant’s placing of his hand inside the satchel, moving it around and keeping it there coupled with the evidence that moments later a gun was produced supports the inference that the applicant was preparing to use the gun on Mr. Sudomericky.

[38] At this stage, the applicant’s right arm was at an angle away from his body. This evidence, coupled with the video showing the applicant placing and keeping his hand inside the satchel as he walked out of the LCBO store supports the preliminary inquiry’s judge’s conclusion of an inference that the applicant intended to use the gun on the victim.

[39] Cumulatively, these items of evidence constitute some evidence that immediately after their altercation, the applicant had formed an intention to kill Mr. Sudomericky, quickly followed him out of the store planning to carry out his intent, drew his gun when Mr. Sudomericky approached him, and then chased him to finish off the plan he had devised when leaving the checkout area.

[40] I agree with the applicant’s comments that evidence of demeanour, standing alone, does not denote evidence of planning and deliberation. However, the preliminary inquiry judge recognised the limited use of this evidence citing Doherty J.A.’s comments in R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.) at para. 14, where he observed:

[o]ften, evidence of after-the-fact conduct will be probative of the accused’s participation in the crime alleged, but will have no probative value in determining the level of the accused’s culpability. Sometimes, however, as a matter of common sense and human experience, the evidence will be capable of supporting an inference that an accused had a particular state of mind.

[41] Here, the applicant’s calm demeanour combined with the rest of the evidence referred to above, could support the inference that the applicant’s actions were not impulsive or spontaneous, but planned and thought out from the altercation that had occurred previously.

[42] The question for this court is not whether I agree with the judge’s decision but whether she committed jurisdictional error in committing the applicant.

[43] Cumulatively, the evidence identified by the preliminary inquiry judge, if accepted, could be the basis for a conviction of first degree murder by a reasonable and properly instructed jury.

[44] There may well be other inferences or scenarios that can be drawn from the evidence.

[45] For example, it could be that the applicant left the LCBO to intimidate or threaten Mr. Sudomericky without harming him. The shooting may have only occurred because Mr. Sudomericky went back to confront the applicant and continued his aggression outside the LCBO.

[46] However, even though there may be many competing inferences that favour the applicant, the preliminary inquiry judge could only draw the inferences most favourable to the Crown.

[47] Although Ms. Costain-Williams understandably provided evidence exonerating the applicant, her evidence was largely contradicted by other independent witnesses. In the final analysis, however, questions of credibility are to be answered by the triers of fact and are not within the purview of the preliminary inquiry judge.

[48] I repeat the observation that"[I]t 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”: R. v. Deschamplain, [2004] 3 S.C.R. 601 at para. 23. Accordingly, I am not permitted to substitute my view of the evidence for that of the preliminary inquiry judge. To do so without taking the Crown’s case at its highest would be an overreach of this court’s reviewing power: Wilson, at para. 36.

[49] For these reasons, I find no jurisdictional error and the application is dismissed.

S.A.Q. Akhtar J. Released: 9 June 2023