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 thereof is made by the prosecutor, and
(b) shall, if application thereof is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any newspaper or broadcast before such time as, in respect of each of the accused,
(c) he is discharged; or
(d) if he 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) In this section, “newspaper” has the same meaning as it has in section 297. R.S., c. C-34, s. 467: R.S.C. 1985, c. 27 (1st Supp.), s. 97.
COURT OF APPEAL FOR ONTARIO
MacPHERSON, BLAIR and LANG
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
STEPHANIE SLESSOR
Respondent
Amanda Rubaszek for the Appellant
M. Gregory Ellies for the Respondent
Heard: April 27, 2007
On appeal from the decision of Justice Ian M. Gordon of the Superior Court of Justice dated, November 15, 2006, dismissing the application for certiorari regarding the preliminary inquiry ruling of Justice Jean-Gilles Lebel of the Ontario Court of Justice, dated May 5, 2006.
ENDORSEMENT
1This is a Crown appeal from the decision of Ian Gordon J., which dismissed a certiorari application from the decision of the preliminary inquiry judge, Lebel J., who declined to commit the respondent for trial.
2The Crown argues that the certiorari judge erred in failing to find that the preliminary inquiry judge erred, first, by failing to consider the whole of the evidence and, second, by impermissibly weighing competing inferences.
3The respondent mother of six-week old twin boys was charged with aggravated assault and failing to provide the necessaries of life on the basis of multiple injuries suffered by the boys over the course of several weeks. The boys’ father was committed to trial without opposition on the same charges. The aggravated assault charges against the respondent relate directly to the boys’ injuries, while the failure to provide necessaries charges relate to the allegation that the respondent should have known of the boys’ injuries from the distress they would have exhibited even if those injuries had been inflicted by their father.
4Regarding consideration of the totality of the evidence, the basic principle is not in dispute. The preliminary inquiry judge’s reasons must demonstrate that he or she considered the whole of the evidence: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 at para. 34. As the certiorari judge noted, it would have been preferable and prudent if the preliminary inquiry judge had specifically dealt with all the facts relied upon by the Crown, including the respondent’s opportunity to inflict the injuries, the multiple nature of the injuries and the distress that the babies would have exhibited at the time the injuries were inflicted. However, as also noted by the certiorari judge, an examination of the record as a whole established that the preliminary inquiry judge was alive to and did consider the whole of the evidence, including these facts. We agree and see no basis to come to a different conclusion.
5Regarding the weighing of competing inferences, again the basic principles are agreed. The preliminary inquiry judge must come to a conclusion about the field of permissible inferences from the evidence and must not improperly engage in weighing inferences. Where the evidence is circumstantial, however, the preliminary inquiry judge must engage in a limited weighing exercise in order to determine whether a properly instructed jury could reasonably draw the suggested inferences.
6Here, the certiorari judge concluded that the preliminary inquiry judge engaged in no more than the limited weighing that is permissible at a preliminary inquiry. The Crown submitted that an inference could reasonably be drawn from the fact that the respondent had the opportunity to inflict the injuries; however, that opportunity was not exclusive. As well, the Crown argued that the fact the respondent sought regular medical attention for the boys could lead to the inference that the respondent knew of their injuries. The preliminary inquiry judge clearly concluded that this inference could not reasonably be drawn on the whole of the evidence, including the evidence about the father, the evidence of the grandmother and the medical evidence. The combination of that evidence made such an inference speculative. Again, we see no basis on which to interfere with that conclusion.
7Accordingly, we would dismiss the appeal.
“J.C. MacPherson J.A”
“R.A. Blair J.A.”
“S.E. Lang J.A.”
