R. v. B.(J.), 2011 ONCJ 280

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code . This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows: 539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (

a) may, if application therefor is made by the prosecutor, and (

b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (

c) he or she is discharged, or (

d) if he or she is ordered to stand trial, the trial is ended. . . .

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Toronto 021936l DATE: 2011·05·13 Citation: R. v. B.(J.) , 2011 ONCJ 280 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — J.B. Before Justice J.W. Bovard Heard on March 14, 15, 16, 17, 21, 22; April 8, 2011 Reasons for Judgment released on May 13, 2011 Ms. K. Hughes ........................................................................................................... for the Crown Ms. S. Pennypacker and Mr. D. Smith ............................................................... for the accused J.B.

Bovard J.: [ 1 ] J.B. and K.C., young persons under the Youth Criminal Justice Act , are charged with the first degree murder of Neil Armstrong on July 16, 2003 in the entertainment district of Toronto. After a preliminary hearing K.C. consented to his committal as charged, but J.B. contests his committal. These are the reasons for the court’s ruling regarding the committal of J.B.

Background [ 2 ] In August 2002 two groups of prisioners the TYAC youth correctional facility were involved in an altercation. J.B. and K.C. were in the same group and Mr. Armstrong was in the opposing group. After the fight, the two groups dealt with the animosity between them and with the help of the corrections officials came to an agreement so that they could co-exist in peace in the facility and the problems were apparently forgotten. [ 3 ] However, the Crown alleges that all was not forgiven.

Late in the evening on July 15, 2003, J.B., K.C. and some friends were at a night club in the entertainment district in Toronto, and K.C. had a run-in with Mr. Armstrong and some of his friends. As a result, K.C. called Brandon Brooks and asked him and Cleavon Springer to go to the club and to bring firearms. [ 4 ] The Crown alleges that when Mr. Springer and Brandon Brooks arrived at the club with their firearms, they and K.C. devised a plan to ambush Mr. Armstrong and shoot him when he came out of the night club.

The Crown argues that J.B. knew of the plan and assisted K.C. in carrying it out, resulting in K.C. shooting Mr. Armstrong and causing his death. [ 5 ] The defence argues that there is not sufficient evidence for the committal of J.B. to stand trial for first degree murder, or for any other offence, because based on all of the evidence the court cannot find that there was a plan to shoot Mr. Armstrong, much less that J.B. knew of the plan and assisted K.C. in carrying it out. Issues [ 6 ] The issues are whether there is sufficient evidence to order J.B. to stand trial as charged, or for any other offence.

The issues raised regarding the making of this determination are whether there is sufficient evidence of a planned and deliberate murder, liability as a party, and wilful blindness. Preliminary Orders of the Court [ 7 ] The court made an order banning publication ( s. 539 (1) (

b) Criminal Code ) and an order for the exclusion of witnesses ( s. 537 (1) (

h) Criminal Code ). Disposition [ 8 ] For the reasons given below, I conclude that there is not sufficient evidence to pass the Sheppard test to justify J. B. ‘s committal to stand trial on any offence. Therefore, he is discharged. The Evidence Agreed Facts [ 9 ] The Crown and the defence agreed on the following facts: 1. A post mortem examination of Mr. Armstrong was performed on July 17, 2003, which found that the cause of his death was a gunshot wound to the chest. Testimonial evidence and exhibits [ 10 ] Cleavon Springer is the Crown’s star witness. On the day in question he was 16 years old.

In the evening of July 15, 2003, he was at home with a friend, Brandon Brooks. At around 9:00 p.m. or10:00 p.m., K.C. called Mr. Brooks about an altercation at the Money club in Toronto’s entertainment district and asked him to meet him at the club with Mr. Springer and to bring firearms. [ 11 ] Mr. Brooks told Mr. Springer to bring his firearm because it was a serious situation and that “most likely firearms are going to be required”. Mr. Brooks had a 9 mm hand gun, possibly a Tokarev and Mr. Springer had a Llama 9 mm hand gun. [ 12 ] Mr.

Springer said that although they were bringing firearms, at that point he did not know whether the firearms were going to be used. He said that it is not “every time you have a firearm it’s going to be used or you know it’s going to be used.” He added that “I am not naïve to the fact that, yes, there is a possibility that it can be used, but for me to say I know 100 percent that’s what’s going to happen I would be speculating.” [1] He has been in situations at clubs and parties where there were firearms, but nothing happened. [ 13 ] They got into Mr.

Springer’s car and went to the Money club around Richmond Street and John Street. Mr. Springer parked beside the club. He stayed in his car because he had not been instructed to do otherwise and he did not see anyone that he knew in the area. Mr. Brooks stayed in the car with him. [ 14 ] Mr. Brooks told someone over the telephone where they were and after about two minutes K.C. arrived and got into the car. He sat in the back, behind the front passenger seat.

Then, they “…suddenly…got more into details about something about what took place inside of the club and just more, you know, in what direction it was going to go from that point. So that’s where like a plan was initiated.” [2]

[ 15 ] The plan was “…in regards to confronting the individuals that the altercation took place with inside of the club.” [3] K.C. told about this in a nonchalant manner. At first Mr. Springer said that K.C. “did not elaborate on who exactly participated in it” and did not give details about the confrontation or about who was involved. But later, he said that K.C. “identif[ied] who it was”, and he named two persons: Pentime and Poochi. [4] Mr. Springer interpreted what K.C. told him as meaning that he (K.C.) and Jonathan Chambers and Yves Gandwimbi bumped into Pentime and Poochi in the club. Mr.

Springer assumed this because Mr. Chambers and Gandwimbi were standing outside of his car while K.C. was telling him this and K.C. “grouped the three of them together”. [ 16 ] Mr. Springer said that from what K.C. said, he understood that there was “bad blood between himself and them”, meaning Pentime and Poochi. K.C. said that they were going to wait until they left the club and then they were going to confront them. When Mr.

Springer was asked how this was to be done, he said that this was going to be done with their firearms. [5] However, he added that “…it wasn’t really said if it was going to be a physical confrontation or if the firearms were going to be used, but they had to be present” according to K.C. [6] [ 17 ] This entire conversation between Mr. Springer, Mr. Brooks and K.C., took place inside Mr. Springer’s car with the rear side passenger window rolled down while Mr. Chambers and Mr. Gandwimbi listened to the conversation from outside the car. Mr.

Springer did not know who else was outside the car listening. [ 18 ] He said that J.B. “was within the vicinity but I wouldn’t speculate and say that he was around my car directly.” [7] He was not as close to the car as were Mr. Chambers and Mr. Gandwimbi. Mr. Springer said that other than the rear passenger side window, he did not know which, if any, other windows were rolled down.

However, he stated that “…there were other people outside of the vehicle and in order for them to listen to the conversation or for us to communicate obviously a window has to be down.” [8] He did not remember exactly where these persons were standing, “…but there were people standing on the rear passenger – driver’s side.” [9] [ 19 ] Mr. Springer explained that in this kind of situation the firearms could be used for defensive purposes or to “take an aggressive stance.” But in this case “…it went from…a possibly defensive or aggressive to aggressive.” [10] Mr.

Springer said that he and K.C. were planning an ambush to be “spearheaded” by K.C. Although K.C. had a firearm it was not reliable so “because of the severity of the situation” he asked Mr. Springer to loan him his, which he did reluctantly and K.C. gave his firearm to Mr. Chambers. [ 20 ] Regarding his reluctance to loan K.C. his firearm, Mr.

Springer stated that he was concerned with staging the confrontation in such a public place and that although “…no one said we are going to shoot this person or shoot that person…but I did know that, you know, there was supposed to be a confrontation…and I am sure if you knew something that you, yourself, know is wrong, then you are not going to want to do it in front of people.” [11] [ 21 ] At this point “It was then relayed [verbally] to others that were there what exactly we were going to do – like what the plan was.” The “others” were J.B., Mr.

Gandwimbi, White P., and possibly two others. [12] K.C. told them that they were going to wait for their targets to come out of the club and then confront them. Mr. Chambers already knew what the plan was because he heard it through the open window. [ 22 ] When they got out of Mr. Springer’s car, they discussed who would go with whom and where they would stand so that they would not lose sight of each other. He said that “possibly everyone” was involved in this discussion. [ 23 ] Mr.

Springer was concerned because, although “…no one said we are going to shoot this person or shoot that person…” [13] “this was a situation that I knew possibly could have a bad outcome…”, for instance, “If a shooting takes place and someone does get hit he can be hurt or killed.” [14] [ 24 ] They split up into subgroups “but there was no specific role at the time exactly how we were supposed to confront them.

It was just more of, like I said, ambush formation but coming from different angles.” [15] He said that “…it wasn’t done with military precision whatnot…but, it wasn’t an executed plan where I said, ‘Okay this is what we’re gonna do. These are the guidelines. We have to do surveillance, counter surveillance and whatnot.’ It’s just a situation than (sic) we went into and along the way we had to adapt to what was going on around us.” [16] [ 25 ] Mr. Brooks and Mr. Chambers formed the first group and Mr. Springer, K.C., J.B., and possibly Mr. Gandwimbi formed the second group. Mr.

Chambers told White P that he was to be a get-a-way driver. The only ones that had firearms were K.C., Mr. Brooks and Mr. Chambers. [ 26 ] Next, K.C. set up beside the club Money, slumping into the corner. They all stood apart, but within view of each other waiting for their targets to come out of the club across the street from the Money club. Mr. Springer was not “keeping tabs” on J.B., but he said that he was “within the vicinity” of “myself”. He was not able to pinpoint on a map of the site where J.B. was, although he remembered where some of the others were. Some did not take up stationary positions. Mr.

Springer was directly in front of Money towards the side of the building. Mr. Springer said that he did not know who they were looking for, but K.C. knew. He testified that J.B. “possibly” knew who he was looking for. [17]

[ 27 ] After five to fifteen minutes they all re-grouped in the parking lot beside Money and revised their plan. They decided that Mr. Gandwimbi would go across the street and keep a lookout for the targets and as soon as they came out of the club he would call the others to tell them that they had come out of the club and in what direction they were headed. At this point Mr. Springer, Mr. Chambers, J.B., Mr. Brooks and K.C. were in the parking lot beside Money and across the street from the club where the targets were. [ 28 ] The targets came out of the club and Mr.

Gandwimbi made the telephone call and told the others that they were out and in which direction they were headed. The target group split up and some of them headed off toward John Street and Mr. Brooks and Mr. Chambers followed them. Mr. Springer. K.C. and J.B. lost sight of them. Then he heard four to six shots fired in the direction that Mr. Brooks and Mr. Chambers had gone. Mr. Springer believed that it was Mr. Brooks and Mr. Chambers that fired the shots. [ 29 ] At this time, Mr.

Springer, K.C. and J.B. were walking towards Richmond Street because they thought that their targets would be coming out of the Club in that direction. They quickened their pace when they heard the shots and Mr. Springer said that “…I did not know how the victim looked so I was more trying to keep track of Mr. [C.] and [J.B.] to see exactly who they were following and who they were going to, you know, confront at this point.” [18] [ 30 ] Mr. Armstrong and possibly two other persons crossed the street and walked toward Money where Mr. Springer, K.C., and J.B. were standing. K.C. and J.B. approached Mr.

Armstrong in the middle of Richmond Street. Mr. Springer was behind them and then went to stand next to a white SUV that was parked nearby. K.C. had the gun at his side as he approached Mr. Armstrong. [ 31 ] As K.C. and J.B. approached Mr. Armstrong, K.C. pointed the gun at Mr. Armstrong. K.C. said something to Mr. Armstrong and Mr. Armstrong took off running towards the parking lot followed by K.C., J.B. and Mr. Springer. Mr.

Springer said “Possibly, it could have been while it was extended that he started to run or when it came out.” [19] In any case, they chased him once or twice around a car that was parked in front of Money and then Mr. Armstrong ran into Richmond Street. J.B. tripped him deliberately [20] from behind, kicking his legs out from under him causing him to fall face first onto the street. Then J.B. backed up three or four feet and stood there as K.C. positioned himself in front of Mr. Armstrong. As Mr. Armstrong was on his knees trying to get up and run away, K.C. shot him and he fell back on the ground. Mr.

Springer, K.C. and J.B. fled the scene. [ 32 ] Mr. Springer said that after the incident, K.C. explained to him that the genesis of the “bad blood” between himself and Pentime and Poochi was an altercation involving two groups at the TYAC youth correctional facility in August 2002. When the Crown asked Mr. Springer if K.C. identified who was in his group he said that “He identified himself, Mr. Gandwimbi for sure and possibly he also mentioned the second defendant” (meaning J.B.). Pentime and Poochi were in the opposing group. [ 33 ] Mr.

Alan Quinn testified that in August 2002, the time during which the confrontation between the two groups at the TYAC youth remand centre took place, he was an operational manager level 1G. As such he was also a

schedule manager. Part of his duties involved being familiar with the centre’s practices and policies regarding altercations between the inmates. [ 34 ] The court received Mr. Quinn’s evidence regarding information contained in TYAC records as credible and trustworthy pursuant to s. 540 (7) of the Criminal Code . By examining the records, which were made exhibits 26 to 39, Mr.

Quinn determined that the following persons were incarcerated at TYAC on August 20, 2002: Neil Armstrong, K.C., J.B., Brandon Brooks, Roid Thompson, Shawn Powers, Isaac Allen, and Kareem Kane-Dawes. [ 35 ] In addition, the records show that there was an altercation involving all of these persons on that date. Exhibit 34, a report written by Mr. David Forndoron, one of the guards that broke up the fight, indicates that Mr. Armstrong, Mr. Keane-Dawes, and Mr. Allen were in one group and were the aggressors. The group that they were fighting was composed of Mr. Thompson, J.B., Mr.

Powers, and another person whose name was blacked out of the report. [ 36 ] Mr. Kareem Keane-Dawes testified that he was in the dormitory at TYAC on August 20, 2002 when the altercation broke out. He said that he was involved in the fight along with Mr. Armstrong, J.B., Mr. Allen, Mr. Powers and Mr. Thompson. [ 37 ] Mr. Keane-Dawes’s group fought against J.B., Mr. Powers and Mr. Thompson. He did not name who was in his group. He described the altercation as a fist fight scuffle that lasted about 30 seconds. The problem was with how some of the guys in the dormitory were behaving.

For example, some of them were dancing at bed time and “behaving like fools.” Mr. Keane-Dawes gave Mr. Powers a black eye. He could not remember who Mr. Armstrong fought with. He said that everyone just rushed everyone and he could only remember what he did. [ 38 ] Mr. Keane-Dawes said that if they patched up their differences they would be let out of their cells and would have more freedom to move around during the day. Soon after the fight they all shook hands and went back to living together on the unit. He was not aware of any continuing bad blood between the combatants.

He said that “the beef was truly squashed.” [ 39 ] Mr. Fred Zuccarelli testified that on July 16, 2003 he was a police officer employed by the Toronto Police Services. He resigned in July 2004 and moved to the United States where he currently works as a real estate agent in Florida.

[ 40 ] On July 16, 2003 he was a forensic identification officer and as such examined the area where the shooting took place. He videotaped the area, took still pictures and collected evidence such as bloody clothing and spent and unspent bullets. The videotape and the pictures were made exhibits. Mr. Zuccarelli gave other evidence regarding his handling of the exhibits and his identification of the area in question on a map, which was made and exhibit. However, his evidence is not disputed and it is not germane to the issue of committal so I will not discuss it further. [ 41 ] Mr.

Gary Russell Lawrence testified as an expert forensic firearm and tool mark examiner. His evidence dealt with forensic examinations of firearms and bullet casings relating to this case, both by himself and a colleague. His evidence is not in dispute and it is not relevant to the issues that I must decide, therefore, I will not discuss it further. [ 42 ] That was all of the evidence. The Position of the Parties [ 43 ] The Crown argues that there is sufficient evidence to commit J.B. to stand trial on first degree murder as a party to the murder committed by K.C.

If the court finds that there is not, then there is sufficient evidence to commit J.B. as a party to second degree murder. [ 44 ] There is sufficient evidence from which it can be inferred that J.B. either knew that K.C. planned to confront Mr. Armstrong with a firearm and shoot him, or he was wilfully blind to that plan. [ 45 ] The defence argues that the issue of committal rests on J.B.’s liability as a party to K.C.’s act of shooting Mr. Armstrong and that the Crown has not adduced sufficient evidence of J.B.’s liability as a party to first degree murder or to any other offence.

The evidence does not allow a reasonable inference that K.C. planned to shoot Mr. Armstrong or that J.B. knew of, or was wilfully blind to such a plan. The only plan that J.B. knew about was a plan to simply confront Mr. Armstrong, not to shoot him. The Law [ 46 ] There are several sections of the Criminal Code that are important for the purpose determining if J.B. should be committed to stand trial as charged, or for any other offence. I will refer to the parts of these sections that are relevant for the case at bar. [ 47 ] I will start at the beginning with the definition of homicide. 222.

(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable. ….

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being, (

a) by means of an unlawful act; …. R.S., c. C-34, s. 205. [ 48 ]

Section 229 defines when culpable homicide is murder: 229. Culpable homicide is murder (

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; … R.S., c. C-34, s. 212. [ 49 ] The definition of first and second degree murder is found in s.231 of the Criminal Code . The relevant parts of that

section for the case at bar are the following: 231.

(1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate. …..

(7) All murder that is not first degree murder is second degree murder. R.S., 1985, c. C-46, s. 231 ; R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); 1997, c. 16, s. 3, c. 23, s. 8; 2001, c. 32, s. 9 , c. 41, s. 9; 2009, c. 22, s. 5 .

[50]

Section 21 of the Criminal Code defines a “party” to an offence as follows: 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. R.S., c. C-34, s. 21. [51] I have reviewed the cases that counsel submitted in support of their arguments and other jurisprudence that I foundrelevant to the determinations that I must make in this preliminary hearing. These cases establish the following principles: R. .v Almarales 2008 ONCA 692 , [2008] O.J. No. 3937 (C.A.) 1. A person may be found guilty of first degree murder as a party (aider) to the offence (Para. 68). Planning and deliberate 2.

With regard to the planning and deliberate part of the mens rea for first de- gree murder, “The aider may acquire his or herknowledge that the murder is planned and deliberate through actual participation in the planning and delib- eration, or by someother means; it is irrelevant how the aider acquired this knowledge (Para.70). R. v. Newman, 2010 ONSC 6009 , [2010] O.J. No. 4627 1. “The meaning of the terms "planned and deliberate" is well established in the case law. The well recognized definition ofthese terms is provided by Gale J. in R.v.Widdifield (1963-64) 6 Crim.

L.Q. 152 at 153-54: I think that in the Code, "planned" is to be assigned, I think, its natural meaning of a calculated scheme or design which has beencarefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, tosay that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate. The important element, it seems to me, insofar as time is concerned, is the time involved in developing a plan, not the time between thedevelopment of the plan and the doing of the act.

One can carefully prepare a plan and immediately it is prepared set out to do theplanned act, or, alternatively, you can wait an appreciable time to do it once it has been formed. As far as the word "deliberate" is concerned, I think the Code means that it should also carry its natural meaning of "considered," "notimpulsive," "slow in deciding," "cautious," implying that the accused must take time to weigh the advantages and disadvantages of hisintended action.

That is, what it seems to me, deliberate means” (Para.31). “The elements of planning and deliberation must precede the commencement of the conduct that causes death: R. v. Reynolds (1978), (ON CA), 44 C.C.C. (2d) 129 (Ont. C.A.); R. v. Smith (1979), (SK CA), 51 C.C.C. (2d) 381 (Sask.C.A.). Justice Watt, in R. v. Ayotte, [1998] O.J. No. 4700 at paras. 64-65 (Ct. J. (Gen. Div.)), refers to the law on "planned anddeliberate" as follows: For there to be a planned and deliberate murder, there must be evidence that the murder was the result of a scheme or design that theaccused had previously formulated or designed.

The murder must be the implementation of that scheme or design. A murder committedon sudden impulse, without prior consideration, however intentional, is not a planned and deliberate murder ... “There is no requirement that a plan take hours or days to prepare. Although the time it takes to develop a plan is an important factor indeciding if a murder is planned, there is no minimum time required. A very simple plan can be formulated in a very short period of time:R. v. Weese, 2010 ONSC 3589, [2010] O.J. No. 2651 at para. 17; R. v. Plewes, 2000 BCCA 278 , [2000] B.C.J.

No. 832 (C.A.)”(Para.33). “The elements of planning and deliberation, while both essential to first-degree murder, are also separate. Thus, there can only be anorder to stand trial for first-degree murder if the threshold test is met for both planning and deliberation, independently: R. v. More, (SCC), [1963] S.C.R. 522; R. v. Stevens (1984), (ON CA), 11 C.C.C. (3d) 518 at 538-39 (Ont. C.A.)”(Para.34). R. v. Briscoe 2010 SCC 13 , [2010] 1 S.C.R. 411 1. A person who aids another in the commission of a crime is equally liable for the crime as is the principle perpetrator (Para.13). 2.

The actus reus of aiding someone in the commission of a crime is doing something that assists the perpetrator to commit theoffence. To aid means to assist or help (Para.14). 3. The person who aids someone to commit a crime must have the requisite mens rea to commit the crime. He or she must have“rendered assistance for the purpose of aiding the principal offender to commit the crime” (Para. 15).

4. The mens rea has two components: intent and knowledge. Intent: The Crown must prove that the accused intended to assist the principle in the commission of the offence (Para. 16). Knowledge: The aider must know that the principle intended to commit the crime, but does not have to know “precisely how it will becommitted”, nor does the aider have to share the intent to commit the crime (Paras 17, 18). It is sufficient that the aider, knowing that the principle intends to commit the crime, does something with theintention of assisting the perpetrator to commit the crime (Para. 18).

Wilful Blindness Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actualknowledge whenever knowledge is a compo- nent of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, butdeliberately chooses not to make those in- quiries (Emphasis in original) (Para. 21). R. v. Dooley 2009 ONCA 910 , [2009] O.J. No. 5483 (C.A.) 1.

There must be a connection between the alleged act of aiding or abetting and the actual commission of the offence by theperson who is aided or abetted (Para.120). 2. The authorities take a wide view of the necessary connection between the acts of alleged aiding or abetting and thecommission of the offence. Any act or omission that occurs before or during the commission of the crime, and which somehow and tosome extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irespectiveof any causative role in the commission of the crime. R. v.

Maciel 2007 ONCA 196 , [2007] O.J. No. 1034 Intent 1. “The aider must provide the assistance with the intention of helping the perpetrator commit the crime: R. v. Hibbert(1995), (SCC), 99 C.C.C. (3d) 193 at paras. 36-37 (S.C.C.). In this sense, it can be said that the aider must intend that the offence will be committed (Para. 87). Knowledge 2. The aider must know what crime the perpetrator intends to commit, the aider does not have to know whatthe details of the crime are (Para. 88). 3.

With regard to first degree murder, “The accused is liable as an aider only if the accused did something to assist theperpetrator in the planned and deliberate murder and if, when the aider rendered the assistance, he did so for the purpose ofaiding the perpetrator in the commission of a planned and deliberate murder. Before the aider could be said to have the requisitepurpose, the Crown must prove that the aider knew the murder was planned and deliberate.

Whether the aider acquiredthat knowledge through actual involvement in the planning and deliberation or through some other means, is irrelevant to his orher culpability under s. 21(1)” (Para. 89). R. v. Hibbert (SCC), [1995] S.C.J. No.63 1. The mens rea for murder is established “if the accused means to cause the victim bodily harm that heknows is likely to cause his death…” (Para. 37). Test for committal to stand trial at a preliminary hearing [52] In deciding whether or not there is sufficient evidence to commit J.B. to stand trial I have to apply the test set out inUnited States of America v.

Sheppard (1976), (SCC), 30 C.C.C. (2d) 424 at 427: … the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in decidingwhether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according towhether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.

The "justice", inaccordance with this principle, is, … required to commit an accused person for trial in any case in which there is admissible evidence,which could, if it were believed, result in a conviction. [53] In Arcuri v. The Queen 2001 SCC 54 , 157 C.C.C. (3d) 21(S.C.C.) @ para. 25, the court affirmed the Sheppardtest.

At paragraph 22, the court stated that the test is the same whether the evidence is direct or circumstantial. [54] The test is straight forward if the Crown presents direct evidence regarding every element of the offence. “…if the judgedetermines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If thereis direct evidence as to every element of the offence, the accused must be committed to trial” (Para. 22).

[55] Regarding circumstantial evidence the court held: “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 notadvanced direct evidence -- may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requires thejudge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gapbetween the evidence and the matter to be established… (Para. 23) (Emphasis Added) [56] The court said that in cases such as these, The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences thatthe Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that theaccused 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. (Para. 23) (Emphasis Added) [57] Guilt does not have to be the only reasonable inference from the evidence: Arcuri supra at para. 25; R. v. Mezzo, (SCC), [1986] 1 S.C.R. 802, 27 C.C.C. (3d) 97. [58] The mandate of the preliminary inquiry justice requires the justice to consider the whole of the evidence, including anydefence evidence.

Arcuri (supra) @ para. 32. [59] It is clear then, that when assessing a circumstantial case at a preliminary hearing to determine if the accused should becommitted to stand trial the evidence does not have to yield only one reasonable inference: guilt. [60] It is the total and cumulative effect of the circumstances disclosed in the evidence that must be considered in applying theSheppard test. [61] Watt J. (as he then was) held in R. v. Gollogly [1989] O.J. No. 3127 aff’d [1989] O.J.

No. 3126 (C.A.), that “Acompartmentalized and isolated analysis of each strand or item of circumstantial evidence is not to be undertaken by the provincial courtjudge presiding at a preliminary hearing. Provided the total and cumulative effect of the circumstantial evidence could found aninference of guilt, an accused must be ordered to stand trial. ” [62] The mandate of the preliminary inquiry justice as expressed in s. 548 (1) requires the justice to consider the whole of theevidence, including any defence evidence.

Arcuri (supra) @ para. 32 [63] A "scintilla" of evidence is enough to justify a committal to trial at a preliminary hearing: Re Skogman and The Queen,13 C.C.C. 161 @ p. 173. [64] At the preliminary hearing stage, any doubt concerning whether or not there is sufficient evidence to commit an accusedto trial should be resolved in favour of the Crown. Ex Parte Hill 1970 Vol. (ON SC), 2 C.C.C. 264 @ 272 , Pennell J.(Ont. Sup. Ct.); R.v. Robinson 19 C.C.C. 175 @177, (B.C.S.C.); R.. v. Cowden (1947), (ON SC), 5 C.R. 18 (Ont. H.C.);Re Martin, Simard and Desjardins and the Queen (1977), (ON CA), 41 C.C.C. (2d) 308, (Ont.

H.C.J.), at 321;rev’don other grounds (1977), 41 C.C.C. (2d) 336 (Ont. C.A.); aff’’d (1978), (SCC), 41 C.C.C. (2d) 342 (S.C.C.); Regina vVerasky, [1979] O.J. No. 1298 (H.C.J.); aff’d [1980] O.J. No. 2036 (C.A.) [65] In R. v. Ghazzi, (ON CA), [2006] O.J. No. 4052, at para. 2 the court held that “any reasonableinterpretation or permissible inference from the evidence adduced at a preliminary inquiry, if properly admissible against the accused,must be resolved in favour of the prosecution. [66] Inferences must be reasonable and logical: R. v. Katwaru (ON CA), [2001] O.J. No. 209 (C.A.) atparagraph 40.

Analysis [67] The evidence is that K.C. summonsed Mr. Springer and Mr. Brooks to the scene of the crime and told them to bringfirearms. Mr. Springer did as asked and drove to the scene with Mr. Brooks. Once there, they met with K.C. in Mr. Springer’s car. K.C.told them that he and two friends had had a confrontation with some persons in a night club that night. While in the car, these threepersons initiated a plan “in regards to confronting the individuals that the altercation took place with inside the club.” [68] Mr. Springer testified that they were planning an ambush “spearheaded” by K.C.

The confrontation was to be done withfirearms. But, “it wasn’t really said if it was going to be a physical confrontation or if the firearms were going to be used, but they had tobe present.” K.C. asked Mr. Springer to loan him his firearm because it was more reliable that the one that he had. However, Mr.Springer testified that “no one said we are going to shoot this person or shoot that person”. However, Mr.

Springer’s opinion, which hedid not say he shared with anyone, was that this was a situation in which he knew could possibly have a bad outcome, for example, if someone got shot they could be hurt or killed. [69] While they were developing this plan the rear passenger side window of the car was rolled down. The best Mr. Springercould say about J.B.’s whereabouts at this time was that he “was within the vicinity”. Mr.

Springer could not say that J.B. was “aroundmy car directly”, but he said that he was not as close as others who were standing by. [70] When the three got out of the car they told the others, including J.B., what the plan was. K.C. said that they were going towait for their targets to come out of the night club and then they were going to confront them. They discussed splitting up into groupsand where everyone would position themselves. Mr. Springer said that “possibly everyone” was involved in this discussion. Mr.Springer, K.C. and J.B. formed one group. In their group only K.C. had a firearm.

The plan “wasn’t done with military precision”. They

were going to get into the situation and then “adapt to what was going on around us.” [ 71 ] Shortly after they took up their positions they came back together and changed the plan to the extent of where some of them were going to position themselves, but importantly, they did not change the part of the plan that called for a “confrontation” with the targets. [ 72 ] When Mr. Armstrong came out of the club he walked towards Mr. Springer, K.C. and J.B., and K.C. and J.B. walked up to him. K.C. pointed the gun at Mr. Armstrong and said something. Mr. Armstrong took off running toward the parking lot followed by Mr.

Springer, K.C. and J.B. They chased him around a car while K.C. had the gun out. Mr. Armstrong ran around the car a couple of times and then headed for the street. As Mr. Armstrong ran by, J.B. tripped him and he fell to the ground. J.B. stepped back and K.C. approached him and shot him. Then they all fled. [ 73 ] In these circumstances, I agree with the defence that the only plan that J.B. could have known about was a plan to simply confront Mr. Armstrong because that was the only plan they had. Whether it was going to be just a physical confrontation or if firearms were going to be used was not discussed.

No one said that anyone was going to be shot. It is true that Mr. Springer’s opinion was that it was a situation in which if someone got shot they could be hurt or killed, but that was just Mr. Springer’s opinion. It was not a plan. It was mere speculation that a shooting would occur, because according to his own testimony, one was not planned. [ 74 ] When the three planners got out of Mr. Springer’s car and shared the plan with J.B. and the others, they shared the plan that they had devised: to confront the persons who were going to come out of the club with whom K.C. had had the altercation. Moreover, Mr.

Springer’s evidence that they were going to let the situation develop and then “adapt to what was going on around us” is inconsistent with there being a plan beyond a mere confrontation. [ 75 ] In these circumstances, I cannot agree with the Crown’s contention that a reasonable inference can be drawn that everyone knew that it was not going to be just a verbal confrontation and that there was no need to specifically say that someone would get shot. At most, one could draw a reasonable inference that when Mr. Springer, K.C. and Mr.

Brooks conveyed the plan to the others that one of them told the others that K.C. had a firearm. That leads to a reasonable inference that J.B. knew that K.C. was going to confront Mr. Armstrong while in possession of a firearm. But there is not sufficient evidence to take an additional step forward and find that there is a reasonable inference that K.C. planned to shoot him, because that is not what the plan called for.

In these circumstances there can be no reasonable inference that J.B. knew that K.C. planned to shoot him, because K.C. had not planned it. [ 76 ] The Crown argued that in transmitting the plan to the others one can reasonably infer that J.B. and the others were told that some of their group had firearms, that firearms were going to be used in the confrontation, and that J.B. would have known that K.C. had a firearm before he confronted Mr. Armstrong.

In addition, the Crown maintains that it is reasonable to infer that J.B. and the others would have been told who had the firearms because they were splitting up and would not want to be caught in a cross-fire.

And furthermore, when the lookout was selected because he knew the targets and because he did not have a firearm, it would have been obvious to J.B. who had firearms and who did not. [ 77 ] Considering the evidence the court heard, I do not think that these arguments get beyond seductive speculation and ex post facto reasoning. [ 78 ] Regarding wilful blindness, based on the evidence presented to the court, the principle of wilful blindness as applied to a planned and deliberate first degree murder is not relevant because there is no sufficient evidence of such a murder to pass the Sheppard test.

Disposition [ 79 ] The Crown argued that should the court find that there is not sufficient evidence to commit J.B. for first degree murder, then the court should find that there is sufficient evidence to commit him to stand trial for second degree murder. However, after considering the evidence, the law, and the submissions of counsel, I find that there is not sufficient evidence to pass the Sheppard test to commit J.B. as charged or for any other offence. Therefore, he is discharged. Released: May 13, 2011 Signed: “Justice J.W. Bovard”