R. v. McIntosh, 2016 ONCJ 52

WARNING The court hearing this matter directs that the following notice 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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (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. ONTARIO COURT OF JUSTICE CITATION: R. v. McIntosh , 2016 ONCJ 52 DATE: 2016·01·29 COURT FILE No.: Toronto 4817 998 15 75006536 00 BETWEEN: HER MAJESTY THE QUEEN — AND — RODERICK MCINTOSH Before Justice Richard Blouin Heard on January 11 – 15, and January 18 – 20, and January 26, 2016 Oral Ruling on Committal heard January 26, 2016 Written Ruling on Committal released January 29, 2016

Ms. Emma Haydon and Ms. Bev Richards ............................................. counsel for the Crown Mr. Michael Strathman ................................... counsel for the defendant Roderick McIntosh BLOUIN J.: introduction [1] In the late afternoon of January 10, 2015, the defendant, Roderick McIntosh, was observed on the lobby surveillancecameras at 330 Jarvis Street. He, and another man who was not with him, was waiting to gain entry to the building through use of theapartment building intercom system. Mr. McIntosh was using his cell phone during this time.

At approximately 5:51 p.m., the deceased,Brent Gartner can be seen to come out of the elevator, open the door to the lobby, and re-enter the elevator with the defendant and theother man. Around 6:30 p.m., again captured on surveillance cameras, Mr. McIntosh staggers out of the elevator, favouring his left arm. A trail of blood was later discovered by police, which led from the deceased’s apartment on the 8th floor to a sidewalk outside 45 CarltonStreet, where the defendant collapsed to the ground, bleeding substantially. A small black knife was located by police with him.

JamesHachey, a close friend and apartment mate of the deceased, was attending to the defendant when police arrived on scene. [2] During this same time period (and more specifically, near 6:30 p.m.) a neighbour and close friend of the deceased, JamesCraswell, heard a commotion coming from his friend’s apartment (apartment 810). Mr. Craswell’s apartment wall was joined to Mr.Gartner’s wall, and Craswell heard a loud thud against it. He left his apartment to attend to the commotion, when he observed the defendant to be frantically pushing the buttons at the 8th floor elevator.

When he reached the deceased’s apartment, he came uponobvious signs of a struggle, and his friend bleeding to death. [3] At this Preliminary Hearing, there was no issue regarding committal for trial on a charge of Murder. The only issue waswhether there was some evidence of planning and deliberation to satisfy committal on First Degree Murder as charged, or not.

If not, Ishould commit the defendant for trial on Second Degree Murder. [4] Since there was no direct evidence of a plan to murder, this Court is required to perform a limited weighing of the evidenceto assess whether it is capable of supporting the inference that the Crown will ask the jury to draw (i.e. planning and deliberation). Atparagraph 21 of R. v. Munoz, (ON SC), [2006] O.J. No. 446, Ducharme, J. writes: This limited weighing means that inferences to be drawn from circumstantial evidence need not be "compelling" or even "easily drawn"in order to be reasonable.

If there are competing inferences, these are for the trier of fact to resolve. A preliminary inquiry judge commitsjurisdictional error where he weighs competing inferences or chooses among them. If the trier of fact could reasonably draw an inferencebased on the evidence, then the matter should be left for their determination. Circumstantial Evidence of Planning and Deliberation [5] Mr. Hachey testified that Mr. McIntosh and Mr. Gartner had known each other for years and were good friends to the best ofhis knowledge. Although not a friend, himself, Mr. Hachey had been to Mr.

Gartner’s apartment (he called him Dave) before and noticedthe artifacts, masks, and weapons displayed on the wall. Mr. Hachey was with the defendant before he left their apartment to see thedeceased. He testified as follows: • The defendant left for the purpose of getting some money (over $200) from the deceased, and told Hachey he was going to“deal with something”. • The defendant told Mr. Hachey to keep in touch and to keep calling him. Since the defendant had never done that before,Hachey was worried about the defendant. • The defendant was known by him to have a “little lock blade” knife.

However, Hachey did not see the defendant with anyknife that day. [6] Cell phone records (Exhibit 9 on consent) of the defendant’s phone show that Mr. Hachey did indeed “keep in touch”.Between 5:42 p.m. and 6:37 p.m. Hachey called McIntosh 37 times. Those same cell phone records show that Mr. Gartner phoned Mr.McIntosh at 8:41 p.m. on January 8 and that McIntosh phoned Gartner at 2:43 a.m. on January 10. There are then seven calls betweenGartner and McIntosh on the afternoon of January 10.

The last one was at 5:30 p.m. – shortly before the defendant left for the deceased’sapartment (he is recorded on surveillance at the lobby door around 20 minutes later). [7] When the defendant is discovered in distress, bleeding heavily, on Carlton Street around 6:35 p.m., a knife was found by P.C.Ito lying on his upper body area. That knife was seized. It was a small black lock knife. The blood on its tip was identified by DNAanalysis to be Brent Gartner’s blood. The crime scene at 330 Jarvis Street contained at least three weapons stained with blood.

The knifefound with the defendant is the only weapon taken from the apartment building. Conclusion [8] In my view, while not the only, or even most compelling, inference to be drawn, the evidence above provides a basis that a

reasonable jury could conclude the defendant had the time and motive to construct a plan, think about it, and eventually carry it out at 330 Jarvis that afternoon. Accordingly, the defendant must be committed for trial on a charge of First Degree Murder. Released: January 29, 2016 Signed: “Justice Blouin”