



WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under ss.
    539(1), (2), (3) or (4) of the
Criminal Code
shall continue.  These
    sections of the
Criminal Code
provide:

539          (1)
Prior to the
    commencement of the taking of evidence at a preliminary inquiry, the justice
    holding the inquiry

(a)       may, if application therefore 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    the inquiry shall not be published in any document or broadcast or transmitted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.

(2)
Where an accused is not
    represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)
Everyone who fails to
    comply with an order made pursuant to subsection (1) is guilty of an offence
    punishable on summary conviction

(4)
[Repealed, 2005, c. 32, s.
    18(2).]

R.S., 1985, c. C-46, s. 539; R.S.,
    1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barnett, 2013 ONCA 179

DATE: 20130325

DOCKET: C55598

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Dylon Barnett, Kristopher McLellan and Kyle
    Mullen

Respondents

Frank Au, for the appellant

Howard L. Krongold, for the respondent Dylon Barnett

Patrick McCann, for the respondent Kristopher McLellan

Paolo Giancaterino and Marco Sciarra, for the respondent
    Kyle Mullen

Heard: March 6, 2013

On appeal from the judgment of Justice B.R. Warkentin of
    the Superior Court of Justice, dated May 11, 2012, dismissing the appellants
    application for
certiorari
and
mandamus
and discharging the
    respondents on first degree murder.

By the Court:

[1]

Following a 12-day preliminary inquiry, the preliminary inquiry judge
    discharged the respondents on first degree murder but committed them to stand
    trial for the second degree murder of Michael Swan. The Crown’s application for
    review by way of
certiorari
and
mandamus
was dismissed by the
    reviewing judge. The Crown appeals to this court.

(1)

Facts

[2]

The three respondents drove from Toronto to Ottawa, and broke into a
    residence that Swan shared with others. McLellan and Barnett were armed with
    loaded handguns; Mullen was armed with a baseball bat. They went directly to
    Swan’s bedroom where Swan was watching TV with his girlfriend, Scott, and a
    friend, Tanguay. Scott testified that the three armed men blocked the exit to
    the bedroom, ordered the occupants to get on the ground on their knees, ordered
    them to get rid of their cell phones, and demanded “where’s the weed?” and
    “where’s the money?” Tanguay testified that the armed men kept asking “where’s
    the money, where’s the gun? You know where the shit is, where is everything,
    what’s going on?” Scott testified that McLellan said to Swan “I know you’re the
    drug dealer, you know where it is.”

[3]

Upon Swan responding, either “I have nothing” in Tanguay’s version or “I
    don’t know” in Scott’s, McLellan shot him. Scott said McLellan shot Swan after Swan
    “went down to do something, and I’m assuming it was to get his phone which was
    in front of him…”

[4]

Swan died within a short time after being shot. The respondents searched
    the rest of the residence, found drugs and money. They were arrested as they
    were driving back to Toronto in possession of the stolen articles and the gun.

[5]

The preliminary inquiry judge committed the respondents for trial on the
    charge of second degree murder but discharged them on first degree murder. He
    concluded there was “no evidence of any plan to kill the victim” and that the
    evidence was “suggestive of an impulsive murder”.

[6]

He rejected the Crown’s “constructive first degree murder” theory. He
    said:

The evidence indicates that the three accused entered Michael
    Swan’s bedroom, demanded to know where the drugs and money were, and within a
    very short period of time of no more than a few seconds, the fatal shot was
    fired. This falls far short of the threshold established by the Supreme Court
    in
Pritchard
.

[7]

He concluded that “it cannot be said that Michael Swan was unlawfully
    confined to the degree required by section 231(5)(e) nor can it be established
    that the three accused exploited their position of domination over the victim in
    order to murder him.”

[8]

The reviewing judge denied the Crown’s
certiorari
and
mandamus
application. She held that the preliminary inquiry judge, in assessing the
    sufficiency of evidence, was entitled to conclude that “there was simply no
    evidence of planning and deliberation which would justify a committal on first
    degree murder.” On the “constructive first degree murder” issue, she held that
    the preliminary inquiry judge properly concluded that “the shooting and the
    alleged confinement did not constitute separate acts because of the manner in
    which the shooting occurred, particularly the timing of the shooting.”

(2)

Issues

[9]

The Crown submits that the preliminary inquiry judge committed
    jurisdictional error by choosing between competing inferences about whether the
    murder was planned and deliberate and by misapplying the law of forcible confinement
    murder pursuant to s. 231(5)(e). The Crown submits it was an error for the
    reviewing judge to uphold the preliminary judge’s decision.

(3)

Analysis

(a)

Planned and
    deliberate

[10]

In our view the Crown misreads the preliminary inquiry judge’s comment
    that the evidence was suggestive of an impulsive murder. Other passages in the
    judge’s reasons make clear that he did not weigh competing inferences but
    rather found there was no evidence of any preconceived plan to commit murder.
    He said “The Crown submits there was a preconceived plan to kill Michael Swan,
    but after reviewing all of the evidence presented at this preliminary hearing,
    I find that there is no evidence of any plan to kill the victim.” He also said:

I have considered all of the evidence presented at this
    preliminary inquiry and there is no available inference that the three accused
    had a plan to kill Mr. Swan prior to entering his residence, or a plan to kill
    if necessary if he did not immediately provide them with the information they
    were seeking. For a court to draw such an inference based on the available
    evidence, would amount to that type of speculation and conjecture that is
    clearly not permissible even at the preliminary inquiry stage.

[11]

We would not give effect to this ground of appeal. The preliminary
    inquiry judge found there was no available inference that would support
    committal for first degree murder. The evidence that was available was
    “suggestive of an impulsive murder” and that is why the judge committed the
    respondents on a charge of second degree murder. The reviewing judge did not
    err in upholding this part of the preliminary judge’s decision.

(b)

“Constructive first
    degree murder”

[12]

Section 231(5)(e) of the Code elevates to first degree any murder where
    the death is caused while forcibly confining the victim. The Supreme Court, in
R.
      v.

Pritchard
, 2008 SCC 59, [2008] 3 S.C.R. 195, held that there
    must be confinement for “a significant period of time”.

[13]

There is, however, no minimum period of time during which the
    confinement must continue. What is a “significant period of time” depends on
    the circumstances of the case. What is important is that the act of killing
    must be separate and distinct from the unlawful confinement.

[14]

Here, there was evidence that, before McLellan shot Swan, the
    respondents entered and blocked the bedroom; pointed firearms at the occupants;
    ordered them to get on the floor on their knees, put up their hands, and put
    aside their cell phones; and demanded where the money and drugs were. In
    particular, there was evidence that McLellan said to Swan “I know you’re the
    drug dealer, you know where it is” and that
Swan
replied “I don’t know” before McLellan shot him.

[15]

It was for the jury to determine what to make of Scott and Tanguay’s
    estimates of how much time elapsed, whether the confinement lasted for a
    significant period, and whether McLellan’s shooting constituted a separate
    criminal act. It seems to us that the preliminary inquiry judge addressed the
    question of whether Swan was “unlawfully confined to the degree required by s. 231(5)(e)”
    rather than leaving that question to the jury.

[16]

By asking himself the wrong question the preliminary inquiry judge
    exceeded his jurisdiction. The question of whether McLellan’s shooting of Swan
    was a separate act committed during an unlawful confinement should have been
    left to the jury. The preliminary inquiry judge should have turned his mind to
    whether Barnett and Mullen were a substantial and integral cause of Swan’s
    death. By finding that the preliminary inquiry judge had not usurped the role
    of the trier or fact, the reviewing judge erred in law.

(4)

Conclusion

[17]

The appeal is allowed, the discharges of the respondents on the charge
    of first degree murder are set aside, and the case is remitted to the
    preliminary inquiry judge for committal of McLellan on the charge of first
    degree murder. The cases of Barnett and Mullen are remitted to the preliminary
    inquiry judge to determine whether there is evidence that their acts were a
    substantial and integral cause of the death and therefore whether they should
    be committed for first degree murder.

“M. Rosenberg J.A.”

“R.G. Juriansz J.A.”

Gloria
    J. Epstein J.A.”

Released: March 25, 2013




