2020 QCCQ 1920, 2020 QCCQ 1920

R. c. Thomassie 2020 QCCQ 1920 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF KUUJJUAQ Criminal Division No: 635-01-017823-197 DATE: May 20, 2020 ______________________________________________________________________ BY THE HONOURABLE THIERRY R. POTVIN, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Complainant v.

WILLIE Jr THOMASSIE Accused ______________________________________________________________________ RECTIFIED DECISION ON PRELIMINARY INQUIRY ______________________________________________________________________ Restriction on Publication: By Court Order, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code, s. 486.4 . [ 1 ] The Court has heard the preliminary inquiry of Mister Willie Jr Thomassie. He stands accused of one count of manslaughter and one count of criminal negligence causing the death of M. M. on the 12th of February 2019. [ 2 ] Mister Thomassie does not challenge that he should be ordered to stand trial on those counts. On the other hand, the crown is seeking a committal on a count of second degree murder. [ 3 ] Therefore, the only element in dispute is the intent.

The accused, admits, for the purpose of the present hearing, that the crown would have been in a position to fulfill its burden, proving that he committed an illegal act, which caused the death of M. M.. [ 4 ] Question : Is there evidence demonstrating that the accused had the necessary intent to commit a second degree murder? ANALYSIS [ 5 ] The evidence shows that the deceased, M. M., and the accused went to M.’s mother’s home at midday in the hope of seeing a young niece who had just travelled from Salluit.

Unfortunately, before they arrived the niece had been brought to some other place by a sister of the deceased. Witnesses mentions that when the accused learned the niece was not there, he went away.

Some say he was not happy. [ 6 ] During her visit, M. mentioned to her mother (A.) that the accused was angry at her, but that she thought he might not be angry anymore and decided to leave. [ 7 ] Before leaving A.'s house, M. would have mentioned to one of her sister, during a completely separate discussion, that the accused and she had fought during the morning but she thought it was ok now. [ 8 ] The evidence establishes that, at some point during the afternoon, the young niece was brought to M.’s home and both she and the accused were able to interact with her for some time.

At 2h45pm M.’s sister took the niece back to A’s home. [ 9 ] This was the last time the deceased and the accused were seen before the tragic events. [ 10 ] At 6h38pm the accused called a friend, Mister Zack Tukiapik, saying he had shot M. M.. Mister Tukiapik went to the accused’s home and saw the deceased's body lying on the floor in the living room. After a certain period of time, he called the police, the first responders and the nursing station. [ 11 ] The accused was wounded by two bullets to his chest, and was saying he wanted to die.

He mentioned to the first responders that the deceased had been dead for a while. [ 12 ] The autopsy and ballistic analysis shows that the deceased died from a single gunshot wound. The bullet would have entered at the orbit of the right eye and would have traveled from the front to the rear and from the right to the left inside the skull.

[ 13 ] The ballistic expert concludes that the deceased was looking directly towards the barrel of the firearm when the shot was fired. [ 14 ] The evidence shows that the firearm used to fire the fatal shot was a Merlin model 60. It is also established that it takes 2.8kg of pressure to fire a shot with that weapon and that the trigger guard was missing, meaning the trigger was exposed. Tests done with the firearm excludes any accidental discharge by dropping or throwing the firearm on the ground.

The expert is of the opinion that the safety was functioning properly as well. [ 15 ] In order to establish intent, the crown is mainly relying on the verbalisations made by the deceased during her last few hours, on the analysis made by the ballistic expert and on the behavior displayed by the accused after the fact. [ 16 ] The purpose of the preliminary hearing is to act as a filter, to prevent unnecessary trials where no evidence exist on an essential element of the infraction. [1] [ 17 ] When relying on direct evidence, the analysis is simple.

The task gets more complex when the crown is relying on circumstantial evidence to establish one of the essential elements of an infraction. The decision of the Supreme Court of Canada in Arcuri [2] mentions that the justice of the peace must then analyse if the elements not proven by direct evidence may be reasonably inferred from the circumstantial evidence.

It goes on to say: “This will bring 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 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.” [ 18 ] The Supreme Court in Sheppard [3] and later, the Ontario Court of Appeal in Turner [4] both reminded that the test to analyse if there is sufficient evidence to order the accused to stand trial is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. [ 19 ] The Arcuri decision summarizes the same test in different words: “The judge must determine whether upon the evidence…a reasonable mind might fairly conclude guilt beyond a reasonable doubt » [5] [ 20 ] A scintilla of evidence on each essential elements of the offence is all that is necessary for the justice of the peace to commit the accused to stand trial on that offence. [6] [ 21 ] Where two inferences can be drawn from circumstantial evidence, one favorable to the accused and another favorable to the crown, the judge must only consider the inference most favorable to the crown. [7] [ 22 ] Question : Is there evidence demonstrating that the accused had the necessary intent to commit a second degree murder? [ 23 ]

Section 229 of the Canadian Criminal Code describes the necessary intent to commit murder. It states: Culpable homicide is muder (

a) Where the person who causes the death of a human being (

i) Means to cause his death, or (ii) Means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; [ 24 ] In the present file, the evidence of intent is solely based on circumstantial evidence. There is an absence of direct evidence as to what exactly happened when the accused caused M. M.'s death. [ 25 ] The question at its core, is whether the judge can infer from the circumstantial evidence that the accused intentionally discharged the firearm in order to cause M. M.'s death.

If such an inference can be made, coupled with the injury sustained by the deceased, it would be sufficient to put the accused to trial on a charge of second degree murder.

VERBALISATIONS FROM THE DECEASED [ 26 ] The crown sought and obtained the permission of the court to put into evidence some verbalisations made by the deceased to some of her family members in the hours preceding her death. [ 27 ] The verbalisations reported by her sister and her mother were admitted into evidence after weighing their reliability and the necessity to use hearsay evidence. [ 28 ] Some verbalisations reported by her father were not deemed reliable enough by the prosecutor, who withdrew her motion to have those utterances be put into evidence.

The court agreed with that assessment. [ 29 ] Those verbalisations demonstrated that there was animosity between the accused and M. that day. But contrary to the decision

Ramsurrun [8] upon which the crown relied, the evidence does not provide any details about the state of the relationship between the accused and the deceased. In Ramsurrun, there were allegations of harassment, threats and violence. Also, in Ramsurrun, the debate was not one of intent, but identification.

The victims had been stabbed multiple times. [ 30 ] The verbalisations made by the deceased did not provide any information neither as to why she thought the accused was angry at her nor why she thought that now, meaning at the time she mentioned it to her mother, it might not be the case anymore. [ 31 ] The verbalisation to her sister did not mention what she intended to mean by using the word fight.

The witness thought that it referred to a verbal argument but it was only speculation on her part. [ 32 ] Of course, the court must not isolate this evidence from the rest and, must then analyse it in the context of the entirety of the evidence. THE BALLISTIC EVIDENCE [ 33 ] The ballistic evidence, in conjunction with the autopsy results suggests that the deceased was looking directly at the barrel of the firearm when she was fatally struck by the bullet. [ 34 ] The crown invites the court to infer that M.

M. was looking at the barrel because the accused was pointing the firearm at her at the time of the shooting. The court does infer from the injury and the expert’s opinion that the deceased was in fact looking towards the barrel of the firearm. To go further would cross the border between a reasonable inference and speculation. [ 35 ] The absence of a trigger guard on the firearm is highly problematic. Had there been a trigger guard, the court could have inferred that the accused had to slide his finger between the trigger and the trigger guard in order to fire a shot.

In the present case, there is a total absence of evidence, direct or circumstantial, on how the trigger was pulled. Even if the pressure necessary to activate the mechanism was deemed safe by the expert, it cannot allow the judge to infer that the trigger was pulled intentionally. It may, very well have been pulled by negligence. [ 36 ] The fact that the safety was functional on the weapon cannot be a factor that would distinguish between a charge of negligence or manslaughter and a charge of murder.

One element of negligence could be to handle a firearm without the necessary precautions and care which could be the absence of use of such a mechanism while handling it. Without any evidence on why the safety was not activated or when it was deactivated, the judge cannot infer intent. [ 37 ] Lastly, the court considers that the evidence provided by the ballistic expert excludes the theory that the deceased would have used the firearm to commit suicide.

The evidence shows that there is an absence of gunpowder residue on the deceased's skin suggesting that the firearm was at such a distance as to prevent her from pulling the trigger herself. THE BEHAVIOR AFTER THE FACT [ 38 ] The crown is also relying on the behavior displayed by the accused after the tragic event. In the present case, the most favorable inference the court can make is one of conscience of guilt. The court cannot infer from that evidence that the accused had the necessary intent to commit murder.

The fact that he did not call the first responders right away, the fact that he called a friend instead, the fact that he turned the gun on himself and shot himself twice in the chest, the fact that the firearm was not near the deceased when witnesses arrived on the scene, is all compatible with a guilty conscience. To go passed that point would bring the court beyond its duty to make reasonable inferences from the circumstantial evidence and would constitute outright speculation.

CONCLUSION [ 39 ] After having considered the entirety of the evidence presented during the preliminary hearing, the court concludes that the circumstantial evidence, even while believed, could not reasonably support the inferences that the crown is seeking or could not bring a reasonable jury, properly instructed, to render a guilty verdict on a second degree murder charge. FOR THESE REASONS, THE COURT: [ 40 ] ORDERS the accused to stand trial on the manslaughter of M. M. and criminal negligence causing her death. Signed in Amos, on May 21, 2020 __________________________________ THIERRY R. POTVIN, J.C.Q.

Mtre Joanie Marion Direction of Criminal and Penal Prosecutions

Lawyer for the complainant M tre Louis Nicholas Coupal Schmidt - Mtre Élizabeth Ménard Coupal Chauvelot s.a. Lawyers for the accused Date of hearing: May 20, 2020