2018 QCCA 1431, 2018 QCCA 1431

Hunt c. R. 2018 QCCA 1431 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006675-183 (500-36-008685-177) (500-01-141126-166 SEQ.ACC.003) DATE: 6 SEPTEMBER 2018 CORAM: THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. CLAUDINE ROY, J.A. NIKITA HUNT APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix and HONOURABLE DANIEL BÉDARD, J.C.Q.

IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] On appeal from a judgment rendered on 21 February 2018 by the Honourable France Charbonneau of the Superior Court, Criminal Division, District of Montreal, granting the respondent’s motion for certiorari and ordering the Honourable Daniel Bédard, j.c.q, who presided the preliminary inquiry to commit the appellant for trial on charges of second degree murder and assault with a weapon; [ 2 ] For the reasons of Healy, J.A., with which Hogue and Roy, JJ.A., agree, THE COURT : [ 3 ] ALLOWS the appeal in part; [ 4 ] QUASHES the writ of mandamus granted by the Superior Court; [ 5 ] DISMISSES the appeal otherwise; [ 6 ] ORDERS the appellant to stand trial on the following charges: On or about April 30, 2016, in Montréal, district of Montréal, did cause the death of Gilbert NSHIMIYUMUKIZA, committing thereby the indictable offence of manslaughter pursuant to

section 236 of the Criminal Code . On or about April 30, 2016, in Montréal, district of Montréal, in committing an assault on Bryan INCE, did carry, use, or threaten to use a weapon, committing thereby the indictable offense provided by

section 267

a) of the Criminal Code . MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. CLAUDINE ROY, J.A. Mtre James Dawson JAMES DAWSON AVOCAT For appellant Mtre Marianna Ferraro

Mtre Geneviève Rondeau-Marchand CRIMINAL AND PENAL PROSECUTING ATTORNEYS For respondent Date of hearing: July 13, 2018 REASONS OF HEALY, J.A. [ 7 ] This is an appeal from a judgment of the Superior Court (“the reviewing justice”) that quashed by certiorari the discharge of the appellant on two counts at a preliminary inquiry and directed by mandamus the judge presiding at the inquiry (“the presiding judge”) to add counts of second-degree murder and assault with a weapon in the order of committal. [ 8 ] The presiding judge decided that there was insufficient evidence of the appellant’s participation in the two additional offences under subsection 21(1) of the Criminal Code .

The reviewing justice concluded that if he had considered the appellant’s participation under subsection 21(2) the evidence was sufficient for committal on both of those two counts. Thus the issues before this Court are, first, whether the reviewing justice was correct in finding that the presiding judge failed to consider the appellant’s liability as a party to offences committed by another in carrying out a unlawful common purpose and, if so, whether this omission constitutes a jurisdictional error that allows review by certiorari .

If it does, the second issue is whether the reviewing justice’s order by mandamus to commit the appellant to trial on the two additional counts was correct. FACTS [ 9 ] The facts are essentially uncontested. [ 10 ] Gilbert Nshimiyumukiza, the victim, and Bryan Ince, the witness, were roommates. They both bought drugs from a man known as The Dreads.

A few weeks before the incident, The Dreads intimidated the victim about an issue concerning drug money. [1] [ 11 ] In the early hours of 30 April 2016 the victim and the witness were in their apartment. [2] At 01:02 cameras recorded three individuals approaching the apartment with their heads covered by hoods. One of them was wearing yellow gloves. [3] They entered the apartment and one of them had a firearm aimed at the victim. The man with the gun was wearing the yellow gloves. They ordered the victim to sit on the sofa near the witness. The witness recognized The Dreads as one of the other two men.

The Dreads asked the victim menacingly: “Where is my money?” The witness then tried to rise from the sofa, but was hit on the head with the gun and directed to sit by the armed man. They were joined by a fourth person who then hit the witness with a baseball bat. The four men demanded to know who was selling drugs in the apartment and talked aggressively to the two occupants. The victim was then suddenly shot in the head.

Everyone froze and the shooter looked at the others in what the witness later interpreted as surprise. [4] The victim died the following day from the injury caused by the gunshot. [5] [ 12 ] After the shot the four individuals took two iPads, a cell phone and cannabis lying on a table and escaped through a window to avoid the cameras. [6] Five minutes after being recorded heading for the apartment, they were filmed leaving through the window. [7] Yellow gloves were recovered nearby with DNA matching the profile of Jermaine Gero.

A palm print matching the appellant’s was found on the ledge of the apartment’s window. [8] [ 13 ] On 13 July 2016, 73 days after the shooting, the appellant was arrested and a revolver with one cartridge short of a full barrel was found in his possession. It was identified as the weapon used to shoot and kill the victim. A bandana was also recovered with DNA matching the profile of Gero. [9] [ 14 ] At the preliminary inquiry, the witness identified Gero as the shooter. [10] The man known as The Dreads was identified as Shamora Robertson.

In the Superior Court the appellant admitted to being the third man who entered the victim and the witness’s apartment. [11] There is no suggestion that the appellant was the principal in any acts of physical violence in the course of these events. PROCEEDINGS [ 15 ] On 14 July 2016, the appellant was charged with the following counts: 1. On or about April 30, 2016, in Montréal, district of Montréal, did cause the death of Gilbert NSHIMIYUMUKIZA, committing thereby a first degree murder, the indictable offence provided by

section 235 of the Criminal Code . 2. On or about April 30, 2016, in Montréal, district of Montréal, in committing an assault on Bryan INCE, did carry, use, threaten to use a weapon, committing thereby the indictable offense provided by

section 267 (

a) of the Criminal Code . 3. Between April 30, 2016 and July 13, 2016, in Montréal, district of Montréal, did possess a prohibited weapon, to wit: a revolver Iver Johnson .32 caliber knowing that they are not the holder of a licence under which they may possess it, committing thereby the indictable offence provided by section 92(2) (3) of the Criminal Code .

4. Between April 30, 2016 and July 13, 2016, in Montréal, district of Montréal, did possess a loaded prohibited firearm without being the holder of an authorization or a licence under which they may possess it and the registration certificate for this firearm, committing thereby the indictable offence provided by section 95(2) (

a) of the Criminal Code . [ 16 ] On 6 September 2017, after the preliminary inquiry, the appellant was committed to stand trial on counts 3 and 4 and discharged on the other counts. [12] On 3 October 2017, the respondent applied to the Superior Court for certiorari to quash the discharge and mandamus to order committal of the appellant on counts 1 and 2. On 21 February 2018 the reviewing justice granted the certiorari and the mandamus sought by the respondent. [13] On 19 March 2018, the appellant filed his notice of appeal as of right against the judgment on appeal.

JUDGMENT ON APPEAL [ 17 ] The judgment on appeal begins with an examination of the original charges in the information and the respondent’s submission “that the judge did not correctly examine party liability under subsection 21(2) of the Criminal Code .” [14] The reviewing justice notes that the respondent concedes that the evidence was insufficient for a committal to trial on the count of first-degree murder as defined by subsection 231(5) of the Code. [15] After reviewing the facts, [16] she notes that the parties agreed on the scope of the certiorari and mandamus [17] and stated the parties’ positions.

The respondent argued that the presiding judge misunderstood the elements of party liability under subsection 21(2) of the Code, failed to consider it in his decision to discharge the appellant and thus erred in failing to find sufficient evidence for committal on counts of second-degree murder and assault with a weapon as a participant in an unlawful common purpose. [18] The appellant argued that the presiding judge considered participation under both subsections of

section 21, concluded that there was no evidence of subjective foresight of murder and thus correctly discharged the appellant for lack of evidence upon which a reasonable jury, properly instructed and acting reasonably, could find him guilty as a participant to the murder. [19] [ 18 ] The reviewing justice agreed that the presiding judge focussed his analysis on participation as an aider and abettor and did not consider liability under subsection 21(2) . [20] She concluded that this was jurisdictional error subject to review on certiorari . [21] She found that direct and circumstantial evidence had been adduced on the agreement to carry out an unlawful purpose and the offences committed by the perpetrator Gero and the fourth man.

These elements were not, and are not, in dispute. [22] Therefore, she identified the issue before her as “whether there is any evidence adduced of subjective or objective foresight of the assault, and subjective foresight of the murder.” [23] After reviewing the applicable law, [24] she found that there was evidence of subjective or objective foresight of the assault, and subjective foresight of the murder, and that this evidence was sufficient to commit the appellant for trial on those counts.

A properly instructed jury could reasonably draw the inferences suggested by the prosecution and find him guilty of second-degree murder and assault with a weapon. [25] Accordingly, the reviewing justice quashed the presiding judge’s discharge of the appellant and ordered the presiding judge to commit him for trial on these two additional charges. [26] QUESTIONS ON APPEAL [ 19 ] As formulated by the respondent, the questions in this appeal are twofold: Did the reviewing justice of the Superior Court err in finding that the presiding judge failed to consider participation under section 21(2) of the Criminal Code on charges of second-degree murder and assault with a weapon?

If not, does the failure to consider section 21(2) constitute jurisdictional error that is subject to review by certiorari ? [ 20 ] This statement of the issues better reflects the ratio of the judgment on appeal. DISCUSSION [ 21 ] In this Court the parties restate the positions they advanced before the reviewing justice. The appellant submits that the presiding judge considered the whole of the evidence regarding participation under both s. 21(1) and (2) and did not exceed his jurisdiction by discharging him on the counts of murder and assault with a weapon.

He submits that the ratio decidendi of the judgment is the presiding judge’s determination that the evidence was insufficient for any form of participation on the counts in question. The respondent submits that the presiding judge did not consider the participation of the appellant in an offence committed by another while carrying out an unlawful common purpose and that this constitutes jurisdictional error reviewable by way of certiorari and mandamus . Participation under s. 21(2) Cr.C. [ 22 ]

Section 21 provides as follows:

Parties to offence 21

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. Participants à une infraction 21

(1) Participent à une infraction :

a) quiconque la commet réellement;

b) quiconque accomplit ou omet d’accomplir quelque chose en vue d’aider quelqu’un à la commettre;

c) quiconque encourage quelqu’un à la commettre. Intention commune

(2) Quand deux ou plusieurs personnes forment ensemble le projet de poursuivre une fin illégale et de s’y entraider et que l’une d’entre elles commet une infraction en réalisant cette fin commune, chacune d’elles qui savait ou devait savoir que la réalisation de l’intention commune aurait pour conséquence probable la perpétration de l’infraction, participe à cette infraction. [ 23 ] Under subsection 21(2) a party can be held liable for an offence committed by the actual perpetrator if three elements are proved: (1) they agree and carry out an unlawful common purpose and while executing their common design; (2) the perpetrator commits another offence (herein a “collateral offence”); (3) that the party knows or should have known is a probable consequence of carrying out the unlawful purpose.

This form of participation extends those found in subsection 21(1) and defines the liability of accomplices for foreseeable collateral offences actually committed by any one of them. [27] [ 24 ] Where the Charter requires a minimal degree of mens rea for a particular offence, that element of mens rea must also be proved against the alleged party. As murder requires proof of subjective mens rea against the perpetrator, a party must have actual subjective knowledge of the probability that a murder will be committed in carrying out the common unlawful purpose.

A finding of objective foresight of homicide, where the party ought to have known that death would be caused, only permits a finding of guilt as a party to manslaughter. [28] The distinction is not always easy but it is of central importance. [ 25 ] The reasons of the presiding judge consistently use the language and refer to authorities relevant to subsection 21(1), which provides for liability as a principal, an aider or an abettor.

It demonstrates an analysis of the evidence in relation to the elements of these forms of liability. [29] At no point do these reasons make reference to an agreement to carry out a common unlawful purpose, collateral offences perpetrated by another or an awareness that such offences would likely be committed in the execution of that common design. [ 26 ] The appellant relies in particular on paragraph 75 of those reasons, which must be read in context: [71] From the above established facts, the Prosecution infers that Hunt and Gero planned a deliberate murder and adding that at least the conduct of Hunt after the murder permits the inference that he is an aider or abettor to the murder committed by Gero. [72] The Court cannot conclude that the inference made by the Prosecution is reasonably supported by the facts. [73] Concerning the first degree murder count, during the incident Hunt is present but his presence can be qualified as a mere presence.

No gesture, no aid, no encouragement, no word. Consequently the facts sustaining a planned and deliberate murder inference, must come before or after with the nuance that the Court must examine post-offence conduct and carefully contextualized it. [74] In the case at bar, the evidence establishes communications between the phone number identified as belonging to Hunt and the phone number belonging to Gero, before and after the murder. The content of the communications are not in evidence.

The other fact established is that seventy-three days after the murder, the revolver is found in Hunt’s packsack when arrested. For the Court, the inference made by Prosecution does not demonstrate a definite link with the facts in evidence. The conclusion remains the same when the totality of the evidence is considered. [75] The conclusion of the Court is the same when the possibility that Hunt is a participant is examined.

No facts in evidence established the mens rea and actus reus required, more specifically that he had the intention to aid or encourage Gero, that he did, and that he knew that Gero had the intention to kill the victim . [76] In

summary, there is an absence of evidence as to the mens rea required for a first degree murder and there is an absence of

evidence as an aider or abettor, more precisely the actus reus and the mens rea of the offence under

section 21 of the Criminal Code . [77] The circumstantial evidence establishes that he was present. The direct evidence from the eyewitness does not establish that he did something or omitted to do something, nor does it establishes that he said something to encourage or facilitate the crime. [30] It is readily apparent that the presiding judge found no evidence of

an act or omission to aid or encourage the commission of offences by the principals and or of an intent to do so. Those are elements of participation as an aider or abettor under subsection 21(1) , which are distinct from elements of participation in the execution of an unlawful common purpose under subsection 21(2). Specifically, the appellant claims too much when he asserts that the knowledge at issue in the last clause of paragraph 75 is common to liability under both subsections of

section 21. It cannot be characterised as an examination of the elements of participation under subsection 21(2).

What is required under subsection 21(2) is knowledge that the collateral offence will likely be committed, which is very different than the party’s shared intent with the principal that is required for a finding of aiding or abetting. [ 27 ] The reasons of the presiding judge disclose no consideration of the possible liability of the appellant for the assault with a weapon committed by Gero and the unidentified fourth man and for the death caused by Gero while they were all carrying out an unlawful common purpose upon which they had agreed .

Accordingly, the reviewing justice made no error in concluding that the presiding judge erred in failing to examine participation under subsection 21(2) before discharging the appellant on the counts of murder and assault with a weapon. Certiorari [ 28 ] A writ of certiorari is an extraordinary remedy by which a superior court reviews the exercise of jurisdiction by a statutory court.

It can only be granted if the reviewing court finds that the judgment under review was rendered without jurisdiction, meaning an absence, loss or excess of jurisdiction. [31] The statutory jurisdiction of the presiding judge is to test the sufficiency of the evidence in order to determine whether there is a case to answer on the count or counts in the information.

The orthodox formulation of the test of sufficiency is that the evidence will be sufficient if a reasonable trier of fact, properly instructed in law and acting reasonably, could find the accused guilty of the offence charged or any other indictable offence disclosed by the evidence with respect to the same transaction. [ 29 ] This test of sufficiency includes three essential features.

First, the evidence adduced at the preliminary inquiry must be admissible. [32] Second, the presiding judge must determine whether there is direct or circumstantial evidence on every element of an offence, including elements of identification and participation. Third, the presiding judge must determine whether the trier of fact could find the accused guilty on that evidence.

The Supreme Court described the exercise of this jurisdiction in Arcuri : The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”. Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”.

The test is the same whether the evidence is direct or circumstantial. The nature of the judge’s task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true. It is for the jury to say whether and how far the evidence is to be believed. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete.

If there is direct evidence as to every element of the offence, the accused must be committed to trial. 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. 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. [33] [ 30 ] A preliminary inquiry thus serves a screening function. [34] The presiding judge must commit the accused to trial if the evidence is sufficient to support a finding of guilt by the trier of fact; otherwise the accused must be discharged.

In this regard there is a link between the test of sufficiency at the preliminary inquiry and the presumption of innocence because the accused must be discharged if the evidence discloses no case to answer.

Unreasonable or irrational inferences from circumstantial evidence, or mere speculation, cannot support an order to commit an accused to trial. [35] [ 31 ] In Charemski McLachlin J. (as she then was) made clear that the test for the sufficiency of the evidence on a motion for a directed verdict, or at a preliminary inquiry, must be considered with reference to the standard of proof beyond reasonable doubt: 20 A properly instructed jury acting reasonably is a jury that will convict only if it finds that the evidence establishes guilt beyond a reasonable doubt.

To determine whether this could occur, the judge on the motion for a directed verdict must ask whether some or all of the admissible evidence is legally sufficient to permit the jury to find guilt beyond a reasonable doubt. In doing so, the trial judge is determining the sufficiency of the evidence. The question is whether the evidence is capable of supporting a verdict of guilt beyond a reasonable doubt. If it is not, the judge must direct an acquittal, since it would be impossible for a reasonable jury to convict legally on the evidence.

The case against the accused has not been made out and there is no charge to answer. To permit the trial to continue would be to impinge on the accused’s right to silence and right to be presumed innocent until proved guilty, and to risk a verdict that

would necessarily be unreasonable. […] 23 The difference between the judge's function on a motion for a directed verdict and the jury's function at the end of the trial is simply this: the judge assesses whether, hypothetically, a guilty verdict is possible; the jury determines whether guilt has actually been proved beyond a reasonable doubt. […] 30 In my opinion, the test for a directed verdict in Canada remains the traditional one: whether a properly instructed jury acting reasonably could find guilt beyond a reasonable doubt.

Where it is necessary to engage in a limited evaluation of inferences in order to answer this question, as in cases based on circumstantial evidence, trial judges may do so; indeed, they cannot do otherwise in order to discharge their obligation of determining whether the Crown has established a case that calls on the accused to answer or risk being convicted. 31 This conclusion is confirmed by the following considerations: it is the only conclusion that satisfies the logic of the trial process; it is the only conclusion that adequately safeguards the accused’s rights; it is the rule that prevails in other common law jurisdictions; and it is the view that best harmonizes with the tests established for proceedings analogous to the motion for a directed verdict, such as preliminary inquiries and appeals on the reasonableness of a conviction […] 35 First, “sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt.

This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case. [36] [ 32 ] These observations were made in a dissenting opinion but were later affirmed by the Court. [37] The basis of that dissent was not the test of sufficiency but its application to the facts. The logic of the link between the test of sufficiency at a preliminary inquiry (or on a motion for directed verdict) and the ultimate burden of persuasion at trial is irrefutable.

The test is whether the evidence, if believed at trial, could support a finding of guilt: evidence cannot be believed without reference to the applicable standard of persuasion for such a belief. [ 33 ] The jurisdiction of the presiding judge is constrained by statute and a failure to observe these constraints implies jurisdictional error that may be reviewed by certiorari .

Examples that illustrate jurisdictional error in applying the test of sufficiency include the following: not committing an accused to trial where there is direct evidence on all the elements of the offence charged, [38] committing an accused to trial without evidence on one or more essential elements of the charge , [39] assessing the credibility or the reliability of the evidence, [40] considering inferences opposed to the prosecution where multiple inferences can be drawn, [41] failing to consider all the evidence, [42] misunderstanding the elements of the offence charged and testing the evidence against the wrong elements [43] and denying natural justice. [44] A common theme in this jurisprudence is that the presiding judge must consider the evidence in a light most favourable to the prosecution and must not weigh the probative value of the evidence that is sufficient for committal. [ 34 ] The reviewing justice concluded that the presiding judge failed to exercise the jurisdiction conferred by the Code by not determining whether the evidence was sufficient to support participation by the appellant in murder and assault with a weapon within the terms of subsection 21(2).

Where any of the forms of participation contemplated by

section 21 can be supported by the evidence, a failure to determine this question constitutes jurisdictional error. If the presiding judge did not examine the evidence in relation to elements of participation in subsection 21(2), it is subject to review. As that is what occurred in the present case, it follows that the reviewing justice made no error in granting certiorari to quash the presiding judge’s decision to discharge the appellant.

Mandamus [ 35 ] What of the writ of mandamus by the reviewing justice to order the presiding judge to commit the appellant for trial on charges of second-degree murder and assault with a weapon? [ 36 ] The sufficiency of the evidence for the first two elements of participation under subsection 21(2) is clear. [45] There is direct evidence that appellant, together with the three other men, were carrying out an unlawful common purpose that included home invasion, robbery, uttering threats and/or other offences.

In the middle of the night they came together in superior numbers, hooded and some armed, and aggressively entered the apartment of the victim and the witness. Once inside, they threatened the occupants and demanded money. As they left, they stole electronic devices and drugs from the apartment. There is also direct evidence that offences were committed by the appellant’s accomplices while they carried out their common unlawful purpose.

While they were inside the apartment, Gero and the unidentified man each hit the witness with weapons, a revolver and a bat respectively, and Gero shot the victim in the head at point-blank range. This evidence, if it were believed, satisfies the first two elements of participation under subsection 21(2): that is, an agreement to carry out an unlawful common purpose and the commission of an offence by one of the participants.

It remains to be asked whether the evidence supports an inference that the appellant knew or ought to have known that the commission of murder by one of the participants was a likely consequence of executing the unlawful purpose. [ 37 ] There is only circumstantial evidence as to the knowledge of the appellant of the likelihood that the offences in question would be committed by his accomplices in the course of carrying out their unlawful purpose.

An inference that the appellant knew or should have known that one of his armed accomplices would likely use his weapon against one of the occupants could reasonably be made from the whole of the evidence. It would be entirely reasonable to infer that a reasonable person ought to have known that armed violence upon entering a home in the middle of the night with three accomplices, two of them armed, was likely.

[ 38 ] The inference that he actually knew that one of his accomplices was likely to cause intentionally the death of one of the occupants, or to cause bodily harm that he knew was likely to cause death and was reckless as to whether death ensued, is not only remote but untenable. Such an inference is an essential element to find the appellant guilty of second-degree murder under subsection 21(2). [46] It could easily be inferred that he knew that Gero was wielding a deadly weapon, and wearing gloves, and that he knew that they were in the apartment for an illegal purpose.

There is no other evidence of the actual knowledge the appellant might have had that the illegal purpose would include an intentional killing. For instance, there is no evidence of the content of prior communications between the appellant and the other accused or of utterances by anyone before, during or after the shooting that would indicate that Gero intended to murder anyone. There is no evidence from which a jury could reasonably infer that the appellant knew that it was probable that a murder would be committed in the course of the intrusion into the apartment.

Such a conclusion would be entirely speculative. While there is evidence that could support an inference that the appellant knew (or should have known) that violence was probable, there is an unbridged gap to a further inference that he knew that one of his accomplices was likely to kill someone intentionally. No evidence permits an inference that would close that gap.

A finding of guilt by a jury on a charge of second-degree murder on this circumstantial evidence would necessarily be unreasonable. [47] [ 39 ] The test of sufficiency at a preliminary inquiry is concerned with both the absence of evidence and the presence of weak evidence. If there is an absence of evidence, no trier of fact could reasonably find something proved. If the evidence is present but so weak that no trier of fact could find an essential element proved beyond reasonable doubt , the protective function of the preliminary inquiry requires that the accused be discharged from criminal jeopardy.

This is a question of law that necessarily requires a “limited weighing” of the evidence. It requires the presiding judge to determine whether a trier of fact could find an element of the offence proved and in this limited sense it is inextricably linked to the standard of proof applicable at trial.

The presence of circumstantial evidence that is so weak that it cannot reasonably meet this standard is functionally the same as the absence of evidence and the accused must be discharged because there is no case to answer. [48] Evidence that could not support a finding of proof beyond reasonable doubt is a chimera based on nothing but conjecture or speculation. [ 40 ] Such is the present case with respect to the element of mens rea required for participation in second-degree murder that is charged against an alleged accomplice. The evidence is not weak; it is non-existent.

The reviewing justice did not point to specific elements in the evidence from which a jury could reasonably infer the appellant’s knowledge of the probability that a murder would be committed. She referred to the totality of the circumstances and decided to leave for a jury the determination of the appellant’s foresight. [49] The mandamus issued by the reviewing justice in effect requires the presiding judge to commit the appellant on a charge for which there is an absence of evidence on an essential element of the offence.

In the absence of evidence from which his actual knowledge that a murder was likely can be inferred, an order to commit the appellant to trial on a charge of second-degree murder does not satisfy the protective function of the preliminary inquiry. [ 41 ] At the hearing, the appellant rightly conceded that the reviewing justice had, and this Court has on appeal, jurisdiction to commit him to trial on a charge of manslaughter, if the evidence is found insufficient on the count of second-degree murder.

He further conceded that the evidence is sufficient for committal to trial on a charge of manslaughter as a participant. Indeed, the circumstantial evidence presented at the preliminary inquiry could permit an inference that the appellant knew or should have known the probability of violence and, to that extent, foresaw the risk of homicide. While insufficient for committal on a charge of second-degree murder, these conclusions could support a finding of participation in manslaughter.

For this reason the appellant should be committed for trial on charges of manslaughter and assault with a weapon and the writ of mandamus should be modified to this effect. CONCLUSION [ 42 ] For these reasons, I propose that the Court allow the appeal in part and order the appellant to stand trial on charges of manslaughter and assault using a weapon. PATRICK HEALY, J.A.