Ontario Criminal

Extraordinary Remedies

Inferences supporting planning and deliberation did not cross line into speculation

Accused individuals charged with second degree murder. Accused individuals applied for order of certiorari quashing committal for first degree murder. Accused individuals argued that preliminary hearing judge exceeded jurisdiction by finding that there was evidence upon which properly instructed jury could have found that there had been planning and deliberation. Accused individuals argued that judge erred in analysis of circumstantial evidence and by drawing inferences that could not have been rationally drawn on facts and which amounted to speculation. Application dismissed. Judge made no jurisdictional error. Judge reviewed extensive evidence called at preliminary hearing and correctly instructed herself on law to be applied in determining whether to order committal and on which charge. Judge correctly held that there was no direct evidence of planning and deliberation and that conviction for first degree murder could have only been based on drawing of inferences from circumstantial evidence. Judge was alive to distinction between impermissible speculation and drawing of rational inferences from proven facts. In coming to conclusion that it was possible for jury to draw reasonable inferences from evidence that would have satisfied requirement of planning and deliberation, judge carefully reviewed and analyzed evidence and positions taken by defence counsel. Reasoning of judge was impeccable. Inferences supporting planning and deliberation were not strongest ones available, but they were reasonable and did not cross line into speculation. When evidence was looked at as whole, it would have been possible for properly instructed jury, acting reasonably, to reach verdict of first degree murder.

R. v. Barrientos (Feb. 13, 2014, Ont. S.C.J., Molloy J., File No. M74/13) 111 W.C.B. (2d) 959.

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