R. v. Parker, 2014 MBCA 75

Citation: R. v. Parker, 2014 MBCA 75 Date: 20140812 Docket: AR 13-30-08059 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) A. Y. Kotler ) for the Appellant Appellant ) ) G. G. Brodsky, Q.C. and - and - ) U. B.

Goeres ) for the Respondent JUSTIN JOSEPH PARKER ) ) Appeal heard: (Accused) Respondent ) June 9, 2014 ) ) Judgment delivered: ) August 12, 2014 MONNIN J.A. [ 1 ] This is a Crown appeal from a refusal by a reviewing judge to grant an order of certiorari and mandamus following a refusal by a preliminary inquiry judge to commit the respondent to stand trial on a charge of manslaughter. [ 2 ] The Crown alleges that the reviewing judge erred when he applied an incorrect standard of review in considering its application for certiorari and mandamus and that he further erred when he concluded that the respondent’s actions were not a significant contributing factor in the victim’s death. [ 3 ] On the night of March 20, 2011, the respondent, along with a co-accused, Pierre Andre Bessette-Forcier (Bessette), and a third person, Joey Whiteway (Whiteway), were drinking and watching television in Bessette’s apartment when they saw two young men breaking into cars in the parking lot of the apartment complex.

The trio decided to go down to the parking lot to confront the two young men. [ 4 ] Whiteway testified that before going down, Bessette said that “they should go do them in” to which the respondent replied that “they should confront them first.” He further testified that on the way out of the apartment, the respondent picked up a can of pepper spray. What followed is set out in the reasons of the reviewing judge in these words: With nothing further said, the three left the apartment. [the respondent] grabbed the can of pepper spray or mace or something similar on the way out of the apartment. Mr.

Whiteway saw this but did not see Mr. Bessette grab a knife on the way out of the apartment. There is no evidence [the respondent] saw that either. There is evidence that the three of them approached one of the thieves and almost immediately one of them kicked him in the back. [the respondent] and the thief approached each other. [the respondent] sprayed him in the face with the spray. [the respondent] then turned away to leave, and within seconds, Mr. Bessette swung at the thief.

He stabbed him causing his death. [the respondent], Bessette and Whiteway ran back to the apartment. [the respondent] was stunned that Mr. Bessette brought a knife and had used it. He swore at him and asked why he did that saying:

“Like, fuck, he was just a kid, man.” During the stabbing, Mr. Bessette cut himself and was bleeding. He took steps to wipe off his blood and dispose of certain items. Hetold [the respondent] to throw them away, which he did by putting them in a garbage chute. [5] The preliminary inquiry judge found there was evidence that the respondent had pepper sprayed the deceased andcommitted him to stand trial on a charge of assault with a weapon.

As to the manslaughter charge, he held that there was no indicationof any common intent, as there was no indication that the respondent had any knowledge that Bessette had a knife with him and intendedto use it. He went on to say: So it’s clear to me both from the evidence of Joey Whiteway as to what happened at the exact moment of the stabbing that [therespondent] was leaving the scene after the brief confrontation and spray. And that [the respondent] was stunned that Bessette had donethis. And swore at him, expressed shock and surprise on more than one occasion on the way back up to the apartment.

That that hadoccurred. And I think that’s clear to me that that negates any common intent or knowledge and that he wasn’t aiding and abetting. And I find thatthe – the act of spraying [the deceased] was not a contributing factor in his death because he had no idea that Mr. Bessette was about tounleash a knife attack on [the deceased]. [6] The reviewing judge agreed with the Crown’s submissions that the preliminary inquiry judge had exceeded hisjurisdiction in the manner that he had dealt with the issue of common intention.

He stated in his reasons: I agree with the Crown that, on the whole, the admissible evidence is open to a reasonable inference that [the respondent] andMr. Bessette formed a common intention to confront the thief to get back what he was stealing and were prepared by bringing the spray,for that to be hostile or for a physical altercation to ensue.

Whether they actually assaulted the thief, for example by first kicking him,and thus committed an unlawful act, or acting in self-defence at the time of the spray and thus had justification for using it aredeterminations for the jury to make, based on the evidence that they weigh, they accept or they reject. If the jury were to infer there wasan unlawful act, it follows then that the objective foreseeability of risk of harm would be their determination to make on the evidencethey accept as well. Thus, in respect of these matters, I respectfully disagree that this was a sufficiency of evidence situation.

The preliminary inquiry judgereviewed the evidence and concluded there was “no indication” of common intention. Those were his words, “no indication”. I interpretthis to mean he said there was no evidence. Put in its proper light respecting a committal on manslaughter, this would mean that there isno indication or evidence or inference of common intention to commit an unlawful act, such as assault, rather than the determination thejudge made respecting the common intention to attack with a knife.

Further, in concluding as he did that other evidence of [the respondent’s] actions after the stabbing negated any common intent orknowledge, the judge appears to have drawn his own conclusions or inferences from the evidence as opposed to have decided simplywhether the Crown’s suggested inference was reasonable. With respect, in reaching these conclusions, he exceeded his jurisdiction. [7] He then went on to deal with the matter of causation, which he resolved as follows: That leaves the remaining element of manslaughter being causation.

The Crown must lead evidence on this point as well, which againmay be direct, circumstantial or normally a common sense inference. Further, it is not necessary that [the respondent] foresee thespecific cause of death. What is necessary is that his unlawful act or acts or the unlawful common purpose he was party to were asignificant contributing factor to death, there must be a nexus between the unlawful act and the cause of death whether looked at fromthe standpoint of manslaughter, per se, or the parties to an offence provisions of [the Criminal Code].

From a manslaughter perspective on the one hand; it requires committing an unlawful act that could cause harm and was a substantialcontributing cause of the death, or respecting

Section 21 on the other hand correspondingly, and quoting the latter portion of Section21(2), it requires that where: “Any one of them in carrying out the common purpose (here for example assault) commits an offence(here for example culpable homicide or manslaughter) each one of them who knew (which is the subjective intention the Crown saysdoes not apply) or ought to have known (which is the objectively reasonable foreseeable manslaughter intention) that the commission ofthe offence would be a possible consequence of carrying out the common purpose is a party to that offence.” I reference in this respect asthe preliminary inquiry judge did to the cases of [R. v.

Nette, 2001 SCC 78, [2001] 3 S.C.R. 488] and Smithers [ (SCC),[1978] 1 S.C.R. 506]. Here the preliminary inquiry judge made another critical conclusion, where … he said: And I find that the act of spraying [the deceased] was not a contributing factor in his death because he had no idea that Mr. Bessette was

about to unleash a knife attack on [the deceased]. Rephrasing this more explicitly in my own words, he concluded that the spray, or in other words the assault if it was one, was not asignificant contributing cause of death because the stabbing was an extraordinary or unusual act which was not objectively reasonablyforeseeable by an ordinary person in similar circumstances, or not a foreseeable possible consequence under all of the circumstances, andthus [the respondent] was not legally liable for [the deceased’s] death.

In finding as he did, the judge did not exceed his jurisdiction as a preliminary inquiry judge. Perhaps arguably he committed asufficiency error or an error in law respecting the application of these legal principles in determining there was sufficient evidence of asignificant contributing cause or an intervening event. However, that type of error, if it occurred, is not reviewable by this court, andagain I refer to Eckstein [2012 MBCA 96, 288 Man.R. (2d) 26] and Russell [2001 SCC 53, [2001] 2 S.C.R. 804]. In this respect, greatdeference must be shown.

Therefore, in conclusion in analyzing the elements upon which the evidence was required respecting a committal for manslaughter, andfollowing the Crown’s theory of the case and evidence, I find the trial judge exceeded his jurisdiction by concluding there was noevidence or by assessing evidence respecting common intention to commit an unlawful act, being assault.

However, I find he did notcommit a reviewable error in finding that whatever the unlawful act that [the respondent] partook in, as may be inferred from theevidence, it was not a significant contributing factor to his death, or alternately, the stabbing was an exceptional intervening event whichwas not objectively reasonable [sic] foreseeable. [8] The Crown takes issue with this analysis along with the reviewing judge’s refusal to find that the preliminary judge’serror with respect to the issue of common intention was sufficient to grant the relief sought.

The Crown argues that the reviewing judgeapplied an incorrect standard of review with respect to the issue of common intention and that he erred in law with respect to hisinterpretation of the requirements of causation.

Therefore, the Crown submits, the decision of the reviewing judge is owed no deferencefrom this court. [9] The Crown submits that the reviewing judge correctly concluded that with respect to the issue of common intention,the preliminary inquiry judge had overstepped by applying the wrong test for committal on manslaughter and by weighing the evidenceand determining any inferences to be drawn from it. [10] With respect to the issue of causation, the Crown alleges that the reviewing judge erred in his analysis of therequirement of foreseeability with respect to manslaughter and that he should have found that there was sufficient evidence to commit therespondent on that charge.

The Crown finally argues that in misinterpreting the factors with respect to the requirements of causation, thereviewing judge in fact committed the same error as did the preliminary inquiry judge with respect to the issue of common intention. [11] In opposing the application by the Crown, the respondent takes the position that the reviewing judge applied a correctstandard of review when considering the preliminary inquiry judge’s decision and, therefore, the application should be dismissed.

Heargues that the reviewing judge correctly found that the respondent’s actions were not a contributing factor in the deceased’s death. [12] The standard by which this court is to consider the merits of this appeal was set out by Chartier J.A. (as he then was) inR. v. Eckstein (S.M.), 2012 MBCA 96, 288 Man.R. (2d) 26 (at para. 13): While mindful that we are in a criminal law setting, the principles set out in Dr. Q., Re, 2003 SCC 19 , [2003] 1 S.C.R. 226;302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, are, in my view, applicable.

These principles have been applied byappellate courts on second-level appeals in the following criminal cases: R. v. Shiers (J.G.) (2003), 2003 NSCA 138 , 219N.S.R. (2d) 196; 692 A.P.R. 196; 2003 NSCA 138, at para. 10, and R. v. Creelman (P.K.) (2007), 2007 NSCA 51 , 254 N.S.R.(2d) 155; 810 A.P.R. 155; 2007 NSCA 51, at para. 8. This means this court will examine the decision of the reviewing judge todetermine, first, whether the correct standard of review was selected and, second, whether it was correctly applied.

These twodeterminations will be reviewed by this court on the correctness standard and if error occurs here, no deference is owed. However, if thereviewing judge selects the correct standard of review and correctly applies it, the same high level of deference which was owed to thepreliminary inquiry judge’s committal decision by the reviewing judge is owed to the reviewing judge’s decision by this court. [13] The reviewing judge, in his reasons, properly set out the standard on which he was to review the preliminary inquiryjudge’s decision. Relying on R. v.

Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, and Skogman v. The Queen, (SCC),[1984] 2 S.C.R. 93, he concluded as follows: Considering this then, the Crown here as applicant is not entitled to a de novo review of the evidence and I am not to substitute myopinion of the evidence for that of the preliminary inquiry judge. The preliminary inquiry judge is entitled to deference in his decisionprovided he exercised his role within the scope of his jurisdiction as a preliminary inquiry judge.

[14] Simply put, the reviewing judge can only intervene when the preliminary inquiry judge “has acted in excess of his orher assigned statutory jurisdiction” (Russell at para. 19).

Having concluded that the reviewing judge correctly determined the standard ofreview, it is left to be determined whether he corrected applied it. [15] In order to properly consider this matter, one must firstly consider the test that a preliminary inquiry judge must apply indeciding whether or not there is sufficient evidence on which to commit an accused. [16] The scope of a preliminary inquiry judge’s authority or jurisdiction was considered by the Supreme Court of Canada inR. v.

Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, where Major J. wrote (at paras. 16, 18): If there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge mustcommit the accused to trial: see United States of America v. Shephard, (SCC), [1977] 2 S.C.R. 1067, at p. 1080. Thus,where the Crown has adduced direct evidence on all the elements of the offence, the preliminary inquiry judge must commit the accusedto trial even if the defence proffers exculpatory evidence: see R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54, at para. 29.

It is,however, a jurisdictional error for a preliminary inquiry judge to commit an accused to trial where there is no evidence on an essentialelement of the charge: see Skogman, supra, at p. 104. The preliminary inquiry judge in this appeal, Moore J., correctly stated the test for committal and the corresponding onus that falls onthe Crown. He also recognized that a preliminary inquiry judge is not permitted to assess credibility or reliability, and that where morethan one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered.

A preliminaryinquiry judge who fails to respect these constraints acts in excess of his or her jurisdiction: see Dubois v. The Queen, (SCC), [1986] 1 S.C.R. 366, at p. 380. [17] In order to decide whether the Crown is correct or not in its submissions with respect to the issue of causation, it isnecessary to consider the law with respect to causation in the context of a charge of manslaughter. That issue was recently considered bythe Supreme Court of Canada in the case of R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30.

In dealing with the issue of causation andintervening acts, Karakatsanis J. stated (at paras. 25-28): The difficulty in formulating one test to determine when an intervening cause interrupts the chain of causation lies in the vast range ofcircumstances in which this issue arises. As mentioned, the majority and the dissent in the court below focussed on two differentapproaches to explain when an intervening act breaks the chain of causation.

The first approach, applied by the majority, looks to whether the intervening act was objectively or reasonably foreseeable (see R. v.Shilon (2006), (ON CA), 240 C.C.C. (3d) 401 (Ont. C.A.)). The majority asked whether the risk of harm caused bythe intervening actor was reasonably foreseeable to the appellants at the time they were committing the unlawful acts.

It concluded thata trier of fact could find that it was reasonably foreseeable to the appellants that their assault on the victim, which occurred in a crowdedbar, late at night, would provoke the intervention of others, perhaps the bar staff, with resulting non-trivial harm. The second approach, applied by the dissent, considers whether the intervening act is an independent factor that severs the impact of theaccused’s actions, making the intervening act, in law, the sole cause of the victim’s death (see R. v. Pagett (1983), 76 Cr. App. R. 279(C.A.); R. v. Smith, [1959] 2 Q.B. 35 (C.M.A.C.)).

The dissent held that the bouncer’s assault was just such an independent factor. In my view, both these approaches are analytical aids ― not new standards of legal causation. I agree with the intervener, the AttorneyGeneral of Ontario, that while such approaches may be helpful, they do not create new tests that are dispositive. Neither anunforeseeable intervening act nor an independent intervening act is necessarily a sufficient condition to break the chain of legalcausation.

Similarly, the fact that the intervening act was reasonably foreseeable, or was not an independent act, is not necessarily asufficient condition to establish legal causation.

Even in cases where it is alleged that an intervening act has interrupted the chain oflegal causation, the causation test articulated in Smithers and confirmed in Nette remains the same: Were the dangerous, unlawful acts ofthe accused a significant contributing cause of the victim’s death? [18] Based on the above, coupled with what this court said in Eckstein, I conclude that while the reviewing judge wascorrect in finding that the preliminary judge acted in excess of his assigned jurisdiction by improperly weighing the evidence, he erredwith respect to his assessment of the sufficiency of the evidence relating to causation or significant contributing cause.

In my view, therewas some evidence that the actions of the respondent might have contributed to the death of the deceased. More specifically, there wasevidence that the respondent and the co-accused talked about “confronting” the thieves and “doing them in”; there was evidence that therespondent, the co-accused and Whiteway surrounded the deceased in the parking lot, with the respondent immediately spraying the

deceased in the face with pepper spray, followed closely in time by the stabbing itself. There is also evidence that one of the three kicked the deceased in the back during the altercation.

Accordingly, as the reviewing judge himself stated with respect to the manner in which the preliminary inquiry judge dealt with the issue of common intention, he appears to have drawn his own conclusions on that issue as opposed to leaving the issue to a trier of fact as well as misstating the requirements of causation with respect to manslaughter. [ 19 ] Based on that error, I owe no deference to the reviewing judge’s decision and based on his finding that the preliminary inquiry judge exceeded his jurisdiction on the matter of common intent, a decision with which I agree, it is now open to this court to bring a fresh look at both judges’ decisions. [ 20 ] I can only conclude, as the reviewing judge did, that not only did the preliminary inquiry judge exceed his jurisdiction in dealing with the issue of common intention, but that he also erred, as did the reviewing judge, with respect to his review of the sufficiency of the evidence on the issue of causation.

By doing so, he acted in excess of his assigned jurisdiction and thus decided an issue that was not for him to decide. That issue is to be decided not at the preliminary inquiry stage but by a fact finder, whether a judge alone or a judge with a jury, in the context of a trial. [ 21 ] I would therefore allow the Crown’s appeal and grant it the writ of certiorari and mandamus which it seeks. J.A. I agree: J.A. I agree: J.A.