September 06, 2018
Hogue, Healy, Roy
Appeal from a judgment of the Superior Court granting the respondent’s motion for certiorari and mandamus. Allowed in part.
After the preliminary inquiry, the appellant was discharged on the counts of first-degree murder and assault with a weapon. The Superior Court granted the respondent’s application for mandamus and certiorari and ordered the judge having presided over the preliminary inquiry to commit the appellant to trial on the counts of second-degree murder and assault with a weapon. The accused appeals that decision.
The reviewing justice did not err in determining that the presiding judge erred in failing to consider the appellant’s participation in the offence of intention to carry out an unlawful purpose under s. 21(2) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.) before discharging the appellant on the counts of first-degree murder and assault with a weapon. The reasons of the presiding judge referred only to the criminal liability of parties who commit, aid or abet the commission of an offence under s. 21(1) Cr. C., which is not the case here.
The statutory jurisdiction of a judge presiding over a preliminary inquiry is to test the sufficiency of the evidence to determine whether a reasonable trier of fact, properly instructed in law and acting reasonably, could render a guilty verdict. The evidence, if believed at trial, must be sufficient to establish guilt beyond a reasonable doubt. In this regard, the presiding judge’s failure to assess the sufficiency of the evidence of the appellant’s participation in the murder and assault with a weapon under s. 21(2) Cr. C. constitutes an error in the exercise of his jurisdiction, and the reviewing justice did not err in issuing a writ of certiorari to quash his decision to discharge the appellant on the two counts.
The reviewing justice, however, erred in committing the appellant to trial on the count of second-degree murder. The direct evidence is sufficient with respect to the first two elements required to establish that the appellant was a party under s. 21(2) Cr. C., being the existence of an agreement to carry out an unlawful purpose and the commission of an incidental offence by another party while carrying out such unlawful purpose. The evidence, however, could not support an inference that the appellant knew or should have known that another party would commit murder at that time. The lack of evidence as to the mens rea required for participation in second-degree murder does not permit committing the appellant to trial on that count. The circumstantial evidence adduced during the inquiry, however, could permit an inference that the appellant knew or should have known the probability of violence and, to that extent, foresaw the risk of homicide. The appellant is therefore committed to trial on the count of manslaughter, in addition to the count of assault with a weapon.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca.
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