



W A R N I N G

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 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    evidence taken at the inquiry shall not be published in any document or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.

(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Repealed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., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005,
    c. 32, s. 18.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Scott, 2013
    ONCA 286

DATE: 20130501

DOCKET: C56323

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bradford Scott

Appellant

Richard Litkowski, for the appellant

Amy Alyea, for the respondent

Heard: April 25, 2013

On appeal from the order of Justice John A. McMunagle of
    the Superior Court of Justice, dated October 31, 2012, dismissing the
    application for certiorari and upholding the order of Justice Rommel G. Masse
    of the Ontario Court of Justice, dated January 12, 2012, committing the
    appellant to stand trial on a charge of second degree murder.

ENDORSEMENT

[1]

JA was stabbed to death during a home invasion drug rip-off robbery. 
    The Crown alleged that the appellant was a party to the murder because he
    facilitated entry to the victims apartment building by the two intruders, NT
    and PM.

[2]

The appellant was not present during the robbery that led to JAs death.

[3]

The appellant was committed to stand trial on a charge of second degree
    murder after a contested preliminary inquiry.  He stands jointly charged with
    PM.  The two co-accused were charged with first degree murder.  NT plead guilty
    to manslaughter and testified during the preliminary inquiry.

[4]

The appellant brought an application for
certiorari

to
    quash his committal for second degree murder.  In reasons dated October 31,
    2012, his application was dismissed.

[5]

He appeals that dismissal.

[6]

We would allow the appeal, quash the second degree committal and
    substitute a committal on a charge of manslaughter.

ANALYSIS

[7]

The appellant makes a number of submissions as to why the reviewing
    justice erred in failing to find that the preliminary inquiry judge made
    jurisdictional errors in committing the appellant on a charge of second degree
    murder. As in our view the appellant succeeds on the issue of the subjective
mens
    rea
for party liability under s. 21(2) of the
Criminal Code
, we
    will deal only with that issue.

[8]

The reviewing judge carefully and correctly set out the law on this
    matter, noting that an accused will only be guilty of murder as a party,
    pursuant to s. 21(2), if he foresaw that the murder was a probable consequence
    of carrying out the common purpose, in this case the robbery.  He referred to
    this courts decision in
R. v. Laliberty

(1997), 117 C.C.C.
    (3d) 97, at para. 36, in which the necessary
mens rea
for the purposes
    of s. 21(2) is stated to be the requirement of actual foresight or actual
    knowledge that [the principal offender] would stab the deceased with the intent
    to kill him in carrying out the robbery of the deceased.  He also referred to
    this courts decision in
R. v. Ferrari
, [2012] O.J. No. 2649, at para.
    61, which described subjective foresight as the requirement that the
    non-participant knew that the principal offender would probably commit murder
    in carrying out the unlawful purpose.

[9]

The appellant submits that while there was some evidence upon which a
    properly instructed jury could find that the appellant possessed the subjective
    foresight that harm to the deceased might occur during the course of the robbery,
    there was no admissible evidence adduced before the preliminary inquiry judge
    on which he could conclude that the appellant had the subjective foresight that
    the principal offender would kill the deceased in carrying out the robbery.

[10]

We
    agree.

[11]

Certainly,
    a home invasion robbery is inherently dangerous and can give rise to violence,
    which could ultimately result in harm to the victims.  And, there was evidence
    that the appellant knew of PMs violent propensities.  But there was no
    admissible evidence at the preliminary inquiry that the appellant knew that NT
    and PM went to the robbery with a weapon and he was not present at the robbery
    itself.

[12]

The
    process of drawing inferences from the evidence is not the same as
    speculating.  In this case, the evidence at the preliminary inquiry, fully
    considered in the context of a drug rip off robbery, did not provide some
    evidence of the subjective
mens rea

requirement for second
    degree murder.

[13]

Accordingly,
    the appeal is allowed, the committal for second degree murder is quashed and a
    committal on a charge of manslaughter is substituted.

E.E. Gillese
    J.A.

M. Tulloch J.A.

P. Lauwers J.A.


