2022 QCCQ 2634, 2022 QCCQ 2634

R. c. John 2022 QCCQ 2634 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No.: 500-01-208566-205 DATE: April 26, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE GUYLAINE RIVEST, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

LENNIEKA JOHN Accused ______________________________________________________________________ JUDGMENT ON COMMITTAL FOR TRIAL ______________________________________________________________________ OVERVIEW [ 1 ] Two separate robberies occurred several minutes apart at the same place using an imitation firearm and involving two different complainants. [1] [ 2 ] In the first robbery, the accused in a way invited the complainant (Mr. Shor) to come up to the apartment where the robbery occurred shortly after. [ 3 ] In the second robbery, the accused opened the door to the apartment to the other complainant (Mr.

Jean Charles) and invited him in. [ 4 ] It was the same apartment in both cases. [ 5 ] Once inside, two black men, one of whom had an imitation firearm, robbed both complainants of their personal belongings. [ 6 ] During the robbery, the accused John stayed close to the two men and barely reacted. [ 7 ] The prosecution has charged the accused with six counts as a party to the offences. [2] Only the following counts, however, are dealt with in this preliminary inquiry: • two counts of robbery; [3] • two counts of using an imitation firearm during the commission of these robberies. [4] [ 8 ] On the counts concerning the imitation firearm, the prosecution hopes to establish, by way of a motion to admit similar fact evidence that the accused was a party to the commission of these offences by doing concrete acts that aided the two men commit the crimes. [ 9 ] While unusual during a preliminary inquiry, a voir dire was opened and the two complainants provided their respective version of the facts.

The defence did not object to this manner of proceeding. The evidence heard during the voir dire was later filed on the merits. [ 10 ] The prosecution submits that the accused was a party to the commission of these offences due to the proximity in time between the two incidents and the similar modus operandi .

Given that the evidence supports this conclusion, the accused must be committed for trial on the counts dealt with in this preliminary inquiry. [ 11 ] The defence disagrees. [ 12 ] It submits that the prosecution cannot use similar fact evidence or rely on the acts committed by the two men to determine that the accused was a party to the alleged offences. [ 13 ] In other words, the defence pleads that only the accused’s acts themselves must be considered.

Nevertheless, the defence argues that these acts are insufficient to prove participation. [ 14 ] In support of its position, the defence submits that the Carter rule [5] applies to this case, even though the accused has not been charged with conspiracy.

[ 15 ] It should be recalled that this rule states that the acts of co-conspirators may be admissible against other persons depending on the circumstances. [ 16 ] In fact, the defence considers that this rule applies to a case where the prosecution wants to convict based on participation in the offences, like here. [ 17 ] Nonetheless, based on the three-step test applicable to this rule, the defence maintains that there is no evidence of a conspiracy in the facts of this case.

That is why it claims that the acts committed by the two men cannot be taken into consideration to prove that the accused participated in these offences. [ 18 ] On balance, the defence finds that the evidence is insufficient to commit the accused for trial on the four counts dealt with in this preliminary inquiry.

ISSUES [ 19 ] Several issues must be determined: 1) Does the Carter rule apply in this case? 2) Has the prosecution discharged its burden of establishing a scintilla of evidence that the accused was a party to the alleged offences, without using similar fact evidence? 3) If not, is the similar fact evidence admissible at this stage and, if so, can it be used to commit the accused for trial as a party to the offence?

THE NATURE AND FUNCTION OF THE PRELIMINARY INQUIRY [ 20 ] A preliminary inquiry is in essence a screening process [6] that ascertains whether the prosecution has sufficient evidence to warrant a committal for trial [7] within the meaning of s. 548 Cr. C. [ 21 ] The preliminary inquiry judge’s role is vital, but modest. [8] It is the same as that of a trial judge considering a motion for a directed verdict.

In fact, if there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty, [9] the judge must commit the accused to trial. [10] [ 22 ] To discharge its burden at this stage, the prosecution must therefore produce some evidence of culpability for every essential definitional element of the crime. [11] In other words, the person will be ordered to stand trial each time there is admissible evidence that might, if believed, lead to a guilty verdict. [ 23 ] It should be recalled that at this stage, the judge does not have to assess the quality, credibility, or reliability of the witnesses heard, except in cases limited to determining, where the case is circumstantial, whether the inferences the prosecution is asking the jury to draw are reasonable. [ 24 ] Nor should the preliminary inquiry judge assess the merits of a defence.

Last, it should be recalled that the judge must consider only inferences that are favourable to the prosecution. EVIDENCE First incident [ 25 ] On August 11, 2020, after midnight, Mr. Shor and a woman were exchanging text messages on the Tinder dating application on their respective cellphones. It was the first time Mr. Shor had exchanged messages with this woman. [ 26 ] At one point, they agreed to meet up at a specific address. [12] The woman gave him the address. [ 27 ] Mr. Shor therefore went to the agreed location to meet the woman.

He arrived between 1:30 a.m. and 2:00 a.m. [13] He saw a woman, the accused, [14] waiting for him in front of the building. He claims that she was not the same woman he had been exchanging messages with on Tinder: that woman was white while the woman waiting for him in front of the building (the accused) was black. [ 28 ] Mr. Shor and the accused exchanged a few words for about two or three minutes. The accused then entered the building, followed by Mr. Shor.

He thought that the accused wanted him to follow her into Apartment #31 to meet the woman he had been exchanging messages with on Tinder. [15] [ 29 ] Once inside the apartment, the accused closed the door. A few seconds later, two black men came out of a room and approached him. One of them was holding an imitation firearm. The two men in question then robbed him of his chain, bracelet, and the money in his wallet. [ 30 ] During the robbery, the accused remained in the background and did not react. She only watched the scene, without saying a word. Nobody spoke to her. [ 31 ] Mr.

Shor had the impression [16] that the crime was planned and that the two men and the accused knew each other because: 1) the accused did not react when the two men robbed Mr. Shor; 2) she did not say a word, stayed close to them, and only watched what was happening;

3) she showed no sign of fear, even though one of the men was using an imitation firearm that closely resembled a real one; [17] 4) the accused watched the two men and did nothing. Mr. Shor claims that she could have called 911 because she had a telephone, but did not; 5) she also did not react when one of the men told Mr. Shor to leave. He therefore left the apartment alone, while the accused remained inside. [ 32 ] Before he left, one of the two men returned Mr. Shor’s keys and telephone to him and threatened to kill him if he contacted the police. [ 33 ] Mr.

Shor left the scene at approximately 2:30 a.m. and informed the police of what had just happened. Second incident [ 34 ] Around 1:00 or 1:30 a.m., still on August 11, 2020, the accused called Mr. Jean Charles. [ 35 ] Note that Mr. Jean Charles and the accused already knew each other [18] because they had met previously, around six or seven times, and had sexual relations. [19] They had not seen each other, however, for about six months. [ 36 ] During their conversation, the accused asked Mr. Jean Charles to come meet her.

She gave him the same address as the one where the robbery was committed during the first incident. [20] Mr. Jean Charles thought that they were meeting to have sexual relations. [ 37 ] After a 30-minute trip, Mr. Jean Charles arrived at the apartment around 2:30–2:45 a.m. and knocked on the door. The accused, who he recognized, opened the door and invited him in. [ 38 ] Mr. Jean Charles went into the living room and talked to the accused. He gave her $160 to have sexual relations. She told him to wait a few minutes and went into a room near the living room.

She went back and forth about five times before returning to him. [ 39 ] They then started to have sexual relations. Approximately two minutes later, two black men came out of the room where the accused had gone several times since Mr. Jean Charles’s arrival. He did not know that they were in the apartment. [ 40 ] When the two men came out of the room, one of them was holding a knife and the other one was holding an imitation firearm aimed at Mr. Jean Charles. That man then said to him [ translation ] “What are you doing with my sister?” [ 41 ] Mr.

Jean Charles said that when the two men came out of the room, the accused [ translation ] “did not react”, other than to get up from the sofa with him. She then moved behind the two men to speak to the one with the knife. Mr. Jean Charles, however, could not repeat what these two people were saying because the accused was whispering into his ear. Mr. Jean Charles then felt that he had been trapped. [ 42 ] At some point, the individual with the knife robbed him of his personal belongings while the other man aimed the imitation weapon at him. One of the two men gave him back his cellphone. Mr.

Jean Charles then walked toward the door and left the apartment alone. The accused remained inside. [ 43 ] He said that the accused did not react at all during the robbery. She did not defend him. The men were in control. [ 44 ] He then left the scene and contacted the police. It was approximately 3:00 – 3:05 a.m. ANALYSIS 1) Does the Carter rule apply in this case? Positions of the parties Defence [ 45 ] To start, the defence submits that the Carter rule applies to both the notion of similar facts and to that of party to an offence under s. 21 Cr.

C. [ 46 ] Thus, before determining whether the similar fact evidence is admissible to ultimately decide whether the accused was a party to the offences in question, the Court must first establish whether there is evidence of a conspiracy to decide whether the acts of the two men may be considered in this analysis. [ 47 ] If there is no evidence of a conspiracy, the defence argues that the acts committed by the two men cannot be considered to determine whether the similar fact evidence is admissible or whether the accused was a party to the crimes committed by both men. [ 48 ] In support of its position, the defence relies on R. c.

Paul . [21] It therefore submits that the Carter rule does not apply solely to charges of conspiracy, but also to charges alleged in connection with participation. [ 49 ] In this case, the defence argues that the prosecution wants to impute the acts of the two men to the accused to make her liable for their crimes. To do this, the defence claims that there must be evidence of a conspiracy to establish that the accused was a party. [ 50 ] The defence believes, however, that there is no evidence of participation or conspiracy connected to the commission of the offences in question.

As such, only the acts of the accused (and not those of the two men) must be taken into account. And, an analysis of the accused’s acts alone establishes that they are insufficient to commit her to stand trial as a party because she did nothing more than

invite the two witnesses into the apartment. Prosecution [ 51 ] The prosecution submits that the defence has confused the concepts of complicity (participation) and conspiracy. [ 52 ] The prosecution maintains that the Carter rule applies only to cases where the prosecution wants to prove a conspiracy or participation in a common agreement .

Consequently, the Carter rule does not apply when it is a matter of proving a person’s participation in another offence, as here. [ 53 ] In support of its argument, the prosecution refers to BÉLIVEAU-VAUCLAIR : Traité de preuve et de procédures pénales , [22] which states that this rule applies to conspiracies or participation in an agreement . [ 54 ] Therefore, the prosecution claims that the Carter rule does not apply to the facts of this case. All the evidence, including the conduct of the two men, must therefore be taken into account to determine whether the accused was a party to the offences in question.

Analysis [ 55 ] With respect, the Court agrees with the prosecution’s position. [ 56 ] An analysis of Paul reveals that even though that case did not involve a charge of conspiracy, the prosecution was clearly trying to establish that the co-accused formed an intention in common to kill the victim [23] and that they all participated in committing the crime within the meaning of s. 21 Cr. C.

Indeed, that is why the prosecution wanted to admit into evidence certain images drawn from photographs against all the parties. [ 57 ] Those facts are very different from the ones in this case. [ 58 ] Here, the prosecution does not want to prove that the accused John formed an intention in common with the two men to commit the robberies using an imitation firearm.

In other words, the prosecution does not want to enter into evidence any agreement, common intention, or even less a conspiracy between these individuals to commit the offences believed to have been committed in this case. [ 59 ] The prosecution simply wants to prove that, by her conduct, the accused was a party to the offences within the meaning of s. 21(1)(

b) Cr.

C. , without proving, however, that the three parties (the two men and the accused) agreed in advance by sending a message to commit these crimes. [ 60 ] In these circumstances, the Carter rule does not apply. [ 61 ] In fact, an analysis of the relevant case law [24] establishes that the Carter rule consistently applies when the prosecution seeks a conviction by proving the existence, in particular, of a conspiracy, common intention, agreement, or participation in an agreement between the parties, by admitting acts that would otherwise constitute hearsay. [ 62 ] That is where the defence has erred in this matter.

The acts committed by the two men do not constitute [ translation ] “inadmissible hearsay”. [ 63 ] Hearsay generally concerns spoken words, but it can also include non-verbal communication, like gestures, to show “meaningful communication” between the parties”. [25] [ 64 ] In this case, the evidence of facts and gestures by the two men is direct evidence provided by two eyewitnesses (Mr. Shor and Mr. Jean Charles) to prove how the offences in question were committed.

The gestures of the two men therefore do not constitute hearsay; they are not evidence to show that they [ translation ] “communicated a message”. [26] [ 65 ] That is why the Carter rule does not apply given the facts of this case. The acts believed to have been committed by the two men are therefore admissible in evidence. 2) Has the prosecution discharged its burden of establishing a scintilla of evidence that the accused was a party to the alleged offences, without using similar fact evidence?

Positions of the parties [ 66 ] The defence believes that since the accused [ translation ] “did nothing” to participate in the offences, she cannot be convicted of the offences alleged against her by the prosecution.

Her [ translation ] “inaction” cannot make her liable for the acts of others. [ 67 ] The defence claims that the mere presence of the accused at the scene is insufficient for the prosecution to obtain a conviction following a trial. [ 68 ] The prosecution, however, argues that the accused did more than just be at the scene and that she instead played an active role. [ 69 ] With respect, the Court agrees with the prosecution.

Notion of party to offence [ 70 ] It is true that an accused’s mere presence at the scene of a crime in circumstances consistent with innocence will not support a conviction or prove culpable participation in the commission of the crime in question. [27] More is needed. [ 71 ] Inaction or failing to prevent the commission of an offence is not criminal per se , [28] unless for the specific purpose of aiding in

the commission of the offence. [29] [ 72 ] Section 21(1)(

b) Cr. C. states that “[e]very one is a party to an offence who does or omits to do anything for the purpose of aiding any person to commit it ” (Emphasis added). [ 73 ] The actus reus and mens rea for complicity are distinct from those of the principal offence. [30] The alleged act or omission must in fact assist or encourage.

It must also have been done with the specific intent of facilitating or encouraging the principal offender to commit the offence, knowing that the principal intends to commit the crime. [31] [ 74 ] Therefore, to conclude that the accused in this case was a party to the two robberies and use of an imitation firearm, the prosecution must prove that: [32] 1) the accused knew that the two men intended to commit these offences two times; 2) the accused intended to help the two men commit these crimes. [ 75 ] In other words, the accused ought to have known that she was going to contribute to the commission of these crimes.

Essential elements of the offence of robbery (counts 1 and 4) [ 76 ] The offence of robbery is defined in four paragraphs of s. 343 Cr. C. : [33] 343 Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [ 77 ] Sections 343(a), (b), and (

d) require first a robbery, as opposed to an attempted robbery. Robbery also implies the use of violence or threat of violence, which can be manifested in various forms. Essential elements of the offence of using an imitation firearm (counts 2 and 5) [ 78 ] Section 85(2)(

a) Cr. C. states that every person commits an offence who uses an imitation firearm while committing an indictable offence. [ 79 ] “Use” refers to the fact that the offender reveals by words or conduct the actual presence or immediate availability of a firearm (or imitation firearm in this case) to facilitate the commission of an offence. The weapon must then be in the possession of the offender or readily at hand. [34] How does this apply to the present case? [ 80 ] Before continuing the analysis, it should be recalled that this is a preliminary inquiry, not a trial.

Any inferences favourable to the prosecution must therefore be accepted. [ 81 ] The Court therefore concludes that the prosecution has established a scintilla of evidence for each element of the offences in question by way of the accused’s participation, with the result that she will be committed to stand trial on the four counts concerned. [ 82 ] To conclude as such, the Court has taken into account all the accused’s acts and conduct (even inaction) during these two respective incidents, the conduct of the two men, and the logical and reasonable inferences that can be drawn, at this stage, from all the evidence heard.

Below is a

summary. First incident Around 1:30 a.m. – 2:00 a.m. on August 11, 2020 • The accused was waiting for Mr. Shor in front of the building at 5650 Salaberry St., Montreal, #31; • She talked with him for two or three minutes; • She headed into the building in question. Mr. Shor followed her, believing that she would lead him to the woman with whom he had been exchanging messages on Tinder; • She opened the door, [35] invited Mr. Shor in, and then closed the door; • Two men came out of a room. One of them had an imitation firearm (which looked like it was real); • The accused watched while they stripped Mr.

Shor of some of his personal belongings and did not say a word. She did not react; • She showed no sign of fear, even though there was an imitation firearm. She did nothing to defend Mr. Shor or contact 911 even though she had a cellphone; • She did not react when one of the men told Mr. Shor to leave;

• When Mr. Shor left the scene (around 2:30 a.m.), he left alone. The accused therefore remained in the apartment with the two men. [ 83 ] An analysis of the facts related to this incident prove that it is reasonable to believe that the accused enticed Mr. Shor to come to the apartment, opened the door for him, and invited him in. She therefore contributed to bringing Mr.

Shor to the location where the two men were. [ 84 ] Moreover, it is reasonable to believe that the accused knew that the two men were in the apartment because she showed no surprise or any other emotion when she saw them come out of the room. [ 85 ] She also did not react when she saw the firearm. [ 86 ] This leads to the inference that she knew the men intended to commit the crimes at issue. [ 87 ] The Court also infers that by her inaction, the accused intended to assist the two men commit the alleged offences. Her lack of reaction enabled the two men to achieve their purpose, which was to steal Mr.

Shor’s personal belongings. [ 88 ] Consequently, the accused showed her intention to assist the two men by facilitating the commission of offences by the principals through her acts and inaction. This is certainly commencement of proof as to her participation. [ 89 ] Furthermore, there is also evidence of each element of the offences of robbery and use of an imitation firearm. Second incident Around 2:30 a.m. – 2:45 a.m. on August 11, 2020 • Around 1:00 or 1:30 a.m., the accused called Mr. Jean Charles; • She asked him to come to 5650 Salaberry St., Montreal, #31; • She opened the apartment door to Mr.

Jean Charles around 2:30 a.m. – 2:45 a.m.; • She invited him into the apartment; • She went multiple times to the room where the two men were hidden; • She returned to the living room. At one point, the two men came out of the same room as the one she went to numerous times; • One of the men took out a knife while the other one aimed an imitation firearm at Mr. Jean Charles; • The accused did not react and did nothing even though Mr. Jean Charles was being robbed of his personal belongings; • At one point, the accused approached the man with the knife and whispered into his ear; • Mr.

Jean Charles left the apartment alone. [ 90 ] It should be noted that it was the accused who called Mr. Jean Charles and told him the address to go to. She was also the one who opened the door and asked him to come into the apartment. [ 91 ] Her contribution was therefore to bring Mr.

Jean Charles to the two men. [ 92 ] For the same reasons as those raised during the analysis on the accused’s participation in the first incident, the Court draws the inference that the accused also knew that the two men were in the apartment: 1) the accused did not react when she went about five times to the same room where the two men were while Mr. Jean Charles was waiting in the living room; 2) the accused was not surprised or astonished when she saw the two men come out of the room. [ 93 ] She also ought to have known that the two men were still in the apartment when Mr.

Jean Charles arrived considering the short period between the two incidents, no more than 15 minutes. It should be recalled that only Mr. Shor left the apartment around 2:30 a.m. and that Mr. Jean Charles entered it very shortly after, at around 2:30 – 2:45 a.m. [ 94 ] It is also reasonable to draw the inference that the accused knew both men, but primarily the one with the knife because she whispered into his ear while Mr. Jean Charles was being robbed of his belongings.

It should also be noted that everything suggests that following the robbery, she remained with the men in the apartment, at least for a time, because Mr. Jean Charles left alone. [ 95 ] Last, the accused’s lack of reaction [36] during the second incident enabled the two men to achieve their purpose: to steal Mr.

Jean Charles’s personal belongings. [ 96 ] But there is more. [ 97 ] Without even having to compare the parties’ modus operandi in both incidents, the fact that these two incidents occurred as a continuum, in such a concurrent manner, suggests prima facie that the accused ought to have known during the first incident that the two men intended to commit these crimes, considering that the second incident occurred at the same place shortly after. [ 98 ] And during the second incident, the accused also ought to have known, prima facie , what was going to happen with Mr.

Jean Charles, considering the first incident that occurred a short time before. Moreover, it should be recalled that the accused also did not react during the second incident when she saw the knife and the imitation firearm. It is just as reasonable and logical to infer in this context that she knew that the two men were going to commit the offences in question.

[ 99 ] Therefore, without even relying on similar fact evidence, the Court finds that the prosecution has discharged its burden of establishing commencement of proof for each of the elements related to the accused’s participation in the alleged offences for both incidents. [ 100 ] Last, the accused’s identification is established by the fact that the two witnesses not only provided a description matching that of the accused, but also recognized and identified her in the courtroom. [ 101 ] In these circumstances, there is no need to determine the third issue on the admissibility of the similar fact evidence because at this stage the evidence is sufficient, on its own, for each of the alleged offences, to justify ordering the accused to stand trial.

FOR THESE REASONS, THE COURT: [ 102 ] ORDERS Lennieka John to stand trial on counts 1, 2, 4, and 5. __________________________________ GUYLAINE RIVEST, J.C.Q. Mtre Nicolas Charron Criminal and Penal Prosecutor Mtre Fanie Lacroix Counsel for the accused Dates of hearing: October 13, 2021 March 9, 2022