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 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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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(4) [Repealed, 2005, c. 32, s. 18(2).]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., 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
Watt, Lauwers and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jeremy Hall
Appellant
Ariel Herscovitch, for the appellant
Robin Flumerfelt, for the respondent
Heard and released orally: March 11, 2015
On appeal from the judgment of Justice Anne Tucker of the Superior Court of Justice, dated April 23, 2014, dismissing the application for certiorari from the order of Justice Tory Colvin of the Ontario Court of Justice, dated May 27, 2013, for committal to stand trial.
ENDORSEMENT
1The appellant appeals from an order of a judge of the Superior Court of Justice refusing to quash an order of a judge of the Ontario Court of Justice committing the appellant to stand trial on a charge of second degree murder.
2To establish the appellant’s liability for murder, the Crown invoked s. 222(5)(c) of the Criminal Code to prove that the killing was a culpable homicide and s. 229(a) to prove that the unlawful killing was murder.
3The appellant, his co-accused – who does not join in this appeal – and the deceased were inmates in a correctional centre. After the appellant and several others had assaulted, harassed and subjected the deceased to a variety of indignities, the deceased sought refuge in his cell. The attacks by other inmates continued. In the end, a rope, made of braided sheet remnants, with what was described by one witness on one occasion as a “noose” at its end, was thrown into the deceased’s cell by the co-accused. There was evidence on which a trier of fact could find that the appellant was the source of this rope. The co-accused told the deceased to “use it.” The deceased hung himself with the rope.
4The appellant raises two grounds of appeal. Each alleges that the preliminary inquiry judge misapprehended the evidence adduced at the inquiry and drew impermissible inferences about the actus reus and mens rea of second degree murder.
5The case for the Crown included, if not, consisted entirely, of circumstantial evidence. The preliminary inquiry judge was entitled, indeed obliged, to engage in a limited weighing of all the evidence adduced at the inquiry. The task of the judge was to decide, on the whole of the evidence, whether, if the prosecution’s evidence were believed, it would be reasonable for a properly instructed jury to infer guilt. The limited weighing permitted under R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, involves an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence adduced at the inquiry considered as a whole.
6The argument advanced at the preliminary inquiry and on the motion to quash, and repeated here, is commonplace in cases in which the prosecutor seeks to establish the liability of an accused on the basis of circumstantial evidence. What is essentially a single ongoing event is subjected to a metaphysical, frame-by-frame dissection. Each item of evidence is examined in isolation, shorn of its context, then cast aside if a competing inference can be conjured. But such an exercise is to no avail. At each level, first instance, judicial review and on appeal, it is the whole of the evidence that is to be considered. Each item in relation to the others, and to the evidence as a whole. It is all of them together that may constitute a proper basis for committal or conviction as the case may be.
7In our view, there was an evidentiary foundation that supported the inferences drawn by the inquiry judge. There was evidence upon which a reasonable jury, properly instructed, could find the appellant guilty of murder through the combined operation of ss. 222(5)(c) and 229(a) of the Criminal Code. Whether such a jury would or would likely do so is beside the point for our purposes.
8For these reasons, the appeal is dismissed.
“David Watt J.A.”
“P. Lauwers J.A.”
“C.W. Hourigan J.A.”
