2021 QCCQ 2194, 2021 QCCQ 2194

R. c. Chin 2021 QCCQ 2194 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL Criminal and Penal Division No.: 500-01-201383-202 DATE: March 30, 2021 ______________________________________________________________________ BEFORE THE HONOURABLE JULIE RIENDEAU, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

SELWIN GEORGE CHIN Accused ______________________________________________________________________ JUDGMENT ON COMMITAL TO TRIAL [1] ______________________________________________________________________ [ 1 ] In February 2020, the victim is killed by a gunshot wound. [ 2 ] The accused is charged with first degree murder (sect. 235 of the Criminal Code ). [ 3 ] For the purposes of the preliminary inquiry, he concedes that the evidence is sufficient with regards: 1) that he caused the death of the victim, 2) that he caused the death unlawfully , and 3) that he had the state of mind required for murder. [ 4 ] However, he challenges that there is no evidence of planning and deliberation, which is an essential element for first degree murder.

I. QUESTIONS AT ISSUE [ 5 ] Is there any evidence, direct or circumstantial, that the murder is planned and deliberate? [ 6 ] Could a trier of fact find the accused guilty of first degree murder on the evidence led? II.

ANALYSIS [ 7 ] A judge orders an accused to stand trial if there is sufficient evidence to put him on trial for the offence charged or any other indictable offence in respect of the same transaction [2] . [ 8 ] The principles are well known. [ 9 ] 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 [3] . [ 10 ] In other words, the presiding judge tests the sufficiency of the evidence in order to determine whether there is a case to answer on the count in the information [4] . [ 11 ] Courts often refer to “a scintilla of evidence” to describe the degree of proof required to order an accused to stand trial, which may be another way to illustrate the prosecution’s burden at this stage of the procedures [5] . [ 12 ] As underlined in Arcuri , 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 [6] . [ 13 ] If the evidence relied on by the prosecution is circumstantial, the preliminary inquiry judge must weigh the evidence in a limited sense to determine whether the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence [7] . [ 14 ] In conducting this limited weighing, the preliminary inquiry judge takes the case for the prosecution at its highest, meaning the judge accepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown [8] .

[ 15 ] If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, he must commit the accused for trial.

It is irrelevant that the evidence also supports inferences inconsistent with guilt [9] . [ 16 ] That said, since it is a question at issue, is there proof that the murder is both planned and deliberate? [ 17 ] First, let us remind that planning and deliberation are two different things [10] . [ 18 ] Planned means that a plan, a scheme, or actions, have been carefully thought over, weighed, prepared, without necessarily being complicated [11] . [ 19 ] Deliberate means not impulsive.

It means that prior consideration has been given to the act, that the advantages and the disadvantages have been weighed [12] . [ 20 ] In Duchaussoy , the Court of Appeal reminds that « le propos délibéré suppose que le meurtrier ait pris le temps de réfléchir sur la portée du geste qu’il se propose d’accomplir » [13] . [ 21 ] In the present case, what evidence could sustain that the murder is planned and deliberate? [ 22 ] The prosecution submits that here, the chronology of the events is very important. [ 23 ] To this end, the prosecution highlights that a scuffle between the accused and the victim takes place a few minutes after 7 pm, after which the accused leaves the premises, to come back later on.

It is shortly before 9 pm that the victim is shot.

The accused is seen firing his gun twice. [ 24 ] On the prosecution’s point of view, inferences could be drawn from these facts, as well as from the sequence of events, that the murder was planned and deliberate. [ 25 ] The proof mentioned above rests on surveillance videos and on the accused’s cellphone being traced elsewhere than on the premises where the events occur. [ 26 ] For the Court, all the elements underlined by the prosecution are relevant to any analysis that a trier of fact would have to do in deciding whether or not there is proof beyond a reasonable doubt that a murder is planned and deliberate. [ 27 ] In fact, for the Court, each and every one of these elements could be considered with regards to planning, and with regards to deliberation. [ 28 ] With respect to the scuffle, it has to be noted that the victim is seen removing his jacket (the events take place in February) and it lasts long enough for people to try to calm the parties down.

Also, the victim seems to headbutt the accused. [ 29 ] While a motive is never necessary, what could be viewed as one may be taken into account as circumstantial evidence to sustain premeditation [14] .

In that sense, it could be considered as a person giving thoughts to a plan and, or, with regard to a person weighing the advantages or disadvantages, or giving consideration to a certain action. [ 30 ] As for the approximate two hour delay between the scuffle and the events that lead to the death of the victim, it could be perceived as a delay permitting the planning and, or, the deliberation as to the murder, even if it is known that one can plan and, or, deliberate in a very short period of time. [ 31 ] Furthermore, the approximate ten seconds between the moment the victim starts walking towards the accused and the moment the accused fires in his direction could be considered as sufficient to permit time to plan and, or, deliberate.

The fact that the accused pulls out his gun from his pocket and holds it for several seconds before firing, and the fact that he also fires twice, could also support that there is planning and, or, deliberation. [ 32 ] The accused suggests that the victim moving towards him in a threatening manner just before the shooting, combined with the initial scuffle, sustains that he acts in a spontaneous way. Acting spontaneously, or impulsively, is inconsistent with planning and deliberation. [ 33 ] The Court agrees that acting spontaneously, or impulsively, is inconsistent with planning and deliberation.

However, as previously mentioned, when facing two

interpretations at the preliminary hearing, the Court must retain the one most favourable to the Crown. [ 34 ] During its argumentation, the prosecution mentions that the accused leaves the premises of the events after the scuffle to get a gun, and also draws the Court’s attention on the fact that individuals try to pacify the accused in the minutes before the shooting.

The accused suggests that there is not a commencement of proof regarding that. [ 35 ] It is unnecessary for the Court to determine whether any inference could be drawn from this since, in view of all the circumstances, the evidence already establishes that there is a scintilla of evidence on every essential elements of first degree murder. [ 36 ] A reasonable trier of fact, properly instructed in law and acting reasonably, could find the accused guilty of the offence charged, if he accepts as credible the evidence relied on by the prosecution and draws the inferences most favourable to her.

He could do so even if he disregards the last two observations from the prosecution concerning the accused leaving to get a gun and the people trying to pacify the accused in the minutes before the killing. III. CONCLUSION

[ 37 ] Therefore, the Court commits the accused to stand trial on the charge as laid. FOR THESE REASONS, THE COURT: ORDERS the accused to stand trial for murder on the first degree. __________________________________ JULIE RIENDEAU, J.C.Q. Me Philippe Vallières-Roland Attorney for the prosecution Alan Guttman Attorney for the accused Dates of hearing: March 22, 23, 24 and 25, 2021