DATE: 20030225
DOCKET: C37320
COURT OF APPEAL FOR ONTARIO
MORDEN, LASKIN and FELDMAN JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
David Finley, for the respondent
Respondent
- and -
DOUGLAS DESCHAMPLAIN
Michael W. Lacy, for the appellant
Appellant
Heard: January 16, 2003
On appeal from the decision of Justice Louise L. Gauthier of the Superior Court of Justice dated November 26, 2001.
LASKIN J.A.:
A. Introduction
[1] The issue on this appeal is whether a preliminary inquiry judge committed a jurisdictional error in discharging the appellant Douglas Deschamplain after a preliminary hearing.
[2] The appellant is an Ontario Provincial Police officer. Following an incident at the school where his son was a student, the appellant was charged with two Criminal Code offences: possession of a prohibited weapon without a licence and obstruction of justice. The prohibited weapon was alleged to be a brass knuckle knife.
[3] At the conclusion of the preliminary inquiry, Justice Serre of the Ontario Court of Justice discharged the appellant on both counts. She held that the Crown led no evidence that the handle on the knife was made of metal, which was an essential element of the prohibited weapon offence alleged in the information. She also held that because the evidence was insufficient to commit the appellant for trial on the first count, it was necessarily insufficient to commit him for trial on the second count, the obstruction of justice charge.
[4] The Crown’s application to set aside the discharge order succeeded before Justice Gauthier. She concluded that the preliminary inquiry judge “failed to consider the cumulative effect of the evidence as required by the Criminal Code”. She directed Justice Serre to commit the appellant for trial on the first count and to reconsider the whole of the evidence on the second count.
[5] Mr. Deschamplain appeals to this court. His appeal raises two questions. First, did the preliminary inquiry judge commit a jurisdictional error by failing to consider several pieces of circumstantial evidence that supported a committal for trial? Second, did the preliminary inquiry judge commit a jurisdictional error by improperly weighing the evidence before her? I would answer no to both questions. Therefore, I would allow the appeal and restore the order of the preliminary inquiry judge discharging the appellant on both counts in the information.
B. The Incident
(i) The Knife
[6] The incident that gave rise to the charges against the appellant took place on May 24, 2000 at the public school where the appellant’s son, Chris Deschamplain, was a student. The appellant’s wife and another parent found a knife in a box in Chris Deschamplain’s desk. Chris had been showing the knife to other students in his class.
[7] The box with the knife in it was turned over to one of the teachers at the school, Guy Campeau. Mr. Campeau took the box back to his office, opened the lid, and looked at the knife. At the preliminary hearing he testified that the knife was “silver with brass knuckle type four rings that you would put your finger through to hold onto the handle”. On cross-examination he acknowledged that he never took the knife out of the box or even touched it. He also acknowledged that although he described the knife as a “brass knuckle type knife” he was not suggesting that it was made of brass. He testified as follows:
Q. And I just want to be clear; your description of the knife is as follows. That in fact what you saw was a handle of a knife, fair enough?
A. Yes
Q. That was silver coloured?
A. Yes
Q. Including the grip area, is that right?
A. The grip had four rings in it.
Q. Okay.
A. To put your fingers through.
Q. And that area was silver in colour?
A. I believe so.
Q. Okay. And when you referred to it in your evidence as a brass knuckle type, I think you said brass knuckle type of knife?
A. Yes
Q. You’re not suggesting it was made of brass?
A. No. My suggestion there was that it - I’ve never seen brass knuckles before, but from what I know of them, you slide your fingers into a grip and you hold onto it this way.
Q. Fair enough.
A. And so that’s why I referred to it as brass knuckles.
[8] Mr. Campeau was not asked, either on direct examination or on cross‑examination, whether either the four rings or the handle to which they were attached was made of metal.
(ii) The Appellant’s Involvement
[9] Because a knife was found at the school, and because he did not consider it an ordinary knife, Mr. Campeau decided to call the police. With Mr. Campeau’s permission Ms. Deschamplain called her husband, who was on duty that day. About fifteen minutes later he and his partner arrived at the school.
[10] The appellant was dressed in his police uniform. He went alone to the principal’s office to speak to Mr. Campeau. He was told what had occurred - that the knife had been found in his son’s desk and that his son had been showing the knife and may have threatened other students with it. The appellant told Mr. Campeau that he had warned his son about bringing the knife to school. He explained that he had recently bought the knife at a flea market and that it was to be used for whittling wood.
[11] Mr. Campeau suggested that the appellant’s son go home for the day. He asked the appellant some general questions about laying criminal charges and then asked him in what capacity he had come to the school. The appellant replied that he had come both as a concerned parent and as a police officer. Mr. Campeau decided to give the appellant the knife. Until then it had been on the principal’s desk in the box in which it had been found. The appellant took the knife and left the school with his wife and son. The Crown led no evidence about what happened to it.
(iii) The Police Investigation
[12] The day after the incident, the school principal became dissatisfied with the way the matter had been handled. He contacted the police and Detective Sergeant Lalonde was assigned to investigate the incident.
[13] Detective Sergeant Lalonde spoke to the appellant and asked him what kind of knife his son had brought to school. The appellant told him something to the effect that “it’s a small jack‑knife, not a big knife at all”. As far as the appellant was concerned, it did not appear to be a prohibited weapon. Mr. Lalonde later discovered that the appellant had not made any notes about the incident in his police notebook and had not made a police report about having taken the knife. Mr. Lalonde asked the appellant to turn the knife over to the police, but the appellant never did so.
[14] On June 22, 2000, the appellant was arrested and charged with possession of a prohibited weapon without a licence contrary to s. 91(2) of the Criminal Code and with obstruction of justice contrary to s. 139(2) of the Code.
C. Analysis
[15] Several matters are not in dispute on this appeal. First, Justice Serre correctly set out the duty on a preliminary inquiry judge under s. 548 of the Criminal Code. That duty ‑ drawn from the judgment of Ritchie J. in U.S.A. v. Shephard (1976), 1976 8 (SCC), 30 C.C.C. (2d) 424 (S.C.C.) - requires the preliminary inquiry judge to determine “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty,” and to commit an accused for trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction.” See Shephard, supra, at p. 427.
[16] Second, to obtain the appellant’s committal for trial on the first count ‑ the prohibited weapon charge ‑ the Crown had to adduce some evidence that the handle of the knife to which the four rings were attached was made of metal. Not every knife is a prohibited weapon. Section 84(1) of the Code defines a “prohibited weapon” as “(b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon”. Those weapons prescribed to be prohibited are listed in Regulation SOR/98‑462. In this case the relevant provision of the Regulation is part 3, section 15, which prescribes as prohibited “the device known as ‘brass knuckles’ and any similar device consisting of a band of metal with one or more finger holes designed to fit over the fingers of the band” [emphasis added].
[17] Third, the appellant’s committal for trial on the second count ‑ the obstruction of justice charge ‑ depended on his committal for trial on the first count. The Crown’s theory was that the appellant obstructed justice by failing to pursue criminal charges against his son and by failing to keep the knife for evidence in future court proceedings. Unless the knife was a prohibited weapon, the Crown’s theory would not support the appellant’s committal for obstruction of justice.
[18] Fourth, review of the decision of a preliminary inquiry judge is limited to jurisdictional error. Conversely, an error made within the jurisdiction of a preliminary inquiry judge, even an error of law, is not reviewable. McLachlin C.J.C. reiterated this limited scope of review in R. v. Russell (2001), 2001 SCC 53, 157 C.C.C (3d) 1 at 20.
The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93 at p. 99, 13 C.C.C. (3d) 161, 11 D.L.R. (4th) 161. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, supra, at p. 100 (citing Forsythe v. The Queen, 1980 15 (SCC), [1980] 2 S.C.R. 268, 53 C.C.C. (2d) 225, 112 D.L.R. (3d) 385).
[19] I turn now to the two questions on the appeal.
- Did the preliminary inquiry judge commit a jurisdictional error by failing to consider circumstantial evidence that supported a committal for trial?
[20] The critical issue before the preliminary inquiry judge was whether there was any evidence from which she could reasonably infer that the brass knuckle knife described by Mr. Campeau consisted of a band of metal and finger holes. She considered this issue and concluded that there was no evidence the band was made of metal.
Can a Justice draw a reasonable inference from Mr. Campeau’s knowledge of brass knuckles that the device was made of metal? Mr. Campeau simply identified the shape of the device; the grip of the knife bore four rings; it was silver in colour and could be used in a manner consistent with brass knuckles.
To apply, as suggested by the Crown, every-day [sic] meaning to the language on the exchange reproduced above, does not lead to the inference that the device was made of metal. The question on a preliminary inquiry always relates to the ability of the evidence to support a verdict of guilt in the eyes of the dispassionate jury, properly instructed on the law. The absence of evidence on an essential element will result in a discharge.
There is a distinction to be made between a situation where there is no evidence on an essential element of the charge and one where the evidence proffered suffers from frailties.
This is a clear situation where there was no evidence that the device was made of metal nor was there any evidence upon which a reasonably instructed jury could infer that the device was a prohibited weapon as defined in the regulations.
She therefore discharged the appellant on both counts in the information
[21] The reviewing justice gave three reasons why the preliminary inquiry judge had committed a jurisdictional error in discharging the appellant. First, the reviewing justice was of the opinion that there was not only circumstantial evidence, but direct evidence that the knife was a prohibited weapon. On this point, the reviewing justice was wrong. As Mr. Finley for the Crown fairly acknowledged in this court, there was no direct evidence that any part of the knife was made of metal. The evidence was entirely circumstantial.
[22] Second, the reviewing justice found that the preliminary inquiry judge failed to examine any of the circumstantial evidence relating to the obstruction of justice charge. However, the preliminary inquiry judge did not examine this evidence because she had already concluded that there was no evidence the knife was a prohibited weapon. As I said earlier, both sides agree that if the appellant is properly discharged on the first count, he must necessarily be discharged on the second count.
[23] The third reason given by the reviewing judge for setting aside the order of the preliminary inquiry judge goes to the heart of the first question on appeal. The reviewing judge concluded that the preliminary inquiry judge had failed to examine several items of circumstantial evidence from which a reasonable jury, properly instructed, could infer that the knife was a prohibited weapon. The reviewing justice listed four items of circumstantial evidence that the preliminary inquiry judge had not expressly considered:
• The appellant did not make any notes of the incident in his police notebook.
• The appellant did not make a police report about taking the knife.
• The appellant did not turn over the knife though asked to do so by the investigating officer.
• The appellant described the knife as a “jack-knife”.
[24] To this list, Mr. Finley added five other items of circumstantial evidence not considered by the preliminary inquiry judge:
• The appellant’s wife arrived at the school upset and became even more upset “as the situation progressed”.
• Mr. Campeau thought that the knife was “no ordinary knife” and that its presence in the school was as serious as if a gun had been found.
• Mr. Campeau insisted that the police be called and later acknowledged that it was “not in every situation that the police would necessarily become involved”.
• Mr. Campeau gave the knife to the appellant because he was a police officer, not because he was a concerned parent.
• The appellant’s description of the knife was inconsistent with that given by Mr. Campeau.
[25] In discharging the appellant, the preliminary inquiry judge focussed entirely on the evidence of Mr. Campeau and his description of the knife. As I have said, she held that this evidence was insufficient to commit the appellant for trial on the prohibited weapon charge because of the absence of any evidence from which a jury could infer that the handle or the band of the knife to which the finger holes were attached was made of metal.
[26] Section 548(1)(a) of the Criminal Code requires a preliminary inquiry judge to commit the accused for trial “if in his opinion there is sufficient evidence to put the accused on trial…” ; and section 548(1)(b) of the Code requires a preliminary inquiry judge “to discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged…”
[27] The appellant argues that in finding the evidence sufficient to commit on the first count, the reviewing justice engaged in circular reasoning. If the knife was not a prohibited weapon the appellant was not required to refer to the incident in his notebook, make out a police report, or even return the knife. Therefore, the preliminary inquiry judge had no need to consider this circumstantial evidence once she had concluded the evidence was insufficient to show that the knife could be a prohibited weapon. This argument has merit.
[28] Nonetheless, to test the Crown’s position, I am prepared to assume that the preliminary inquiry judge erred in failing to explicitly take into account the body of circumstantial evidence outlined above. I am also prepared to assume that, based on this circumstantial evidence, a reasonable trier of fact, properly instructed, could conclude that the knife was a prohibited weapon. On these assumptions, the narrow but important question is whether the preliminary inquiry judge’s error was a jurisdictional error or an error within her jurisdiction. More specifically, does a preliminary inquiry judge commit a jurisdictional error by discharging an accused after considering some of the evidence at a preliminary inquiry, but not other evidence that could support a conviction? The reviewing justice concluded that the preliminary inquiry judge committed a jurisdictional error. I conclude that she did not.
[29] The reviewing justice’s conclusion is supported by the following passage from the reasons of Watt J. in R. v. Saunders, [1996] O.J. No 518 at paras. 49 and 50 (S.C.J.), a passage she cited in her reasons.
Where a justice has ordered an accused to stand trial in respect of an offence and, on review, a judge of the superior court of criminal jurisdiction decides that there was no evidence before the justice upon the basis of which the justice, acting judicially, could form the opinion that the evidence was sufficient to order the accused to stand trial, the order to stand trial may be quashed for want of jurisdiction. Without the necessary evidentiary predicate, s. 548(1)(a), the jurisdiction to order an accused to stand trial, is not implicated. See, Re Martin and R.; Re Nichols and R. (1977), 1977 1383 (ON CA), 20 O.R. (2d) 45, 41 C.C.C. (2d) 308 (C.A.), aff’d, 1978 30 (SCC), [1978] 2 S.C.R. 511, 41 C.C.C. (2d) 342; R. v. Tuske, unreported, October 25, 1978 (Ont. C.A.); and, R. v. Seguin (1982), 1982 5527 (ON CA), 31 C.R. (3d) 271 (Ont. C.A.)
It would seem to follow, by parity of reasoning, that, where a justice has discharged an accused in respect of an offence after preliminary inquiry and, on review, a judge of the superior court of criminal jurisdiction decides that there was evidence on the basis of which the justice, acting judicially, could form an opinion that the evidence was sufficient to order the accused to stand trial, the order discharging the accused may be quashed for want of jurisdiction. Absence of an evidentiary predicate is necessary to engage the jurisdiction to order a discharge. Where there is such an evidentiary foundation, however, there is no jurisdiction to discharge an accused.
[30] However, both Dambrot J. in R. v. McLarty, [2000] O.J. No. 2429 (S.C.J), which the reviewing justice also cited, and Then J. in R. v. Brown, [2001] O.J. No. 4458 (S.C.J) have taken a different view of jurisdictional error. I prefer the reasoning in these two cases. Both Dambrot and Then JJ. held that when a preliminary inquiry judge fails to consider all of the evidence tendered in support of a committal, the judge does not commit a jurisdictional error, but an error within the exercise of the judge’s jurisdiction. The error amounts to an error in assessing the sufficiency of the evidence. It is not reviewable.
[31] In McLarty, supra, after thoroughly reviewing all of the pertinent authorities - an exercise I need not repeat here - Dambrot J. summarised his conclusion at para. 79 in these words, on which I rely:
In my view, an error by the preliminary hearing judge in weighing or balancing in the scales, or in measuring or pondering and examining the force of evidence to determine whether or not it is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty is an error made within jurisdiction, and is accordingly not susceptible to prerogative review. As a result, although I disagree with the preliminary hearing judge’s conclusion that there was no evidence before him upon which a reasonable jury properly instructed could return a verdict of guilty of second degree murder, I would not intervene on that basis.
[32] Similarly, in Brown, Then J. wrote at paragraph 35:
It follows from these authorities that where there is no evidence to support a committal for trial any committal made by the preliminary judge must be quashed by means of certiorari as the preliminary judge has acted in excess of jurisdiction. However if there is some evidence tendered in support of a committal the preliminary judge must examine the sufficiency of such evidence to determine if a committal is warranted. If he determines that a committal is not warranted his decision is not reviewable by certiorari since even though he may be wrong in law as to the sufficiency of the evidence his error is not a jurisdictional error but an error that has been made within the exercise of his jurisdiction.
[33] The corollary proposition, emphasized by Then J., is that review of a committal order must be looked at differently from review of a no-committal order. If a preliminary inquiry judge commits an accused for trial “without any evidence at all” - “in the sense of an entire absence of proper material as a basis for the formation of a judicial opinion that the evidence was sufficient to put the accused on trial” - the error is jurisdictional and thus reviewable: see Re Martin, Simard and Desjardins and the Queen (1978), 141 C.C.C. (2d) 308 (Ont. C.A.) at 340 aff’d 1978 30 (SCC), 41 C.C.C. (2d) 342 (S.C.C.). If, however, the preliminary inquiry judge wrongly finds the evidence insufficient to warrant a committal, the error is not jurisdictional. The error is one within the jurisdiction of the preliminary inquiry and thus is not reviewable.
[34] The Crown and the accused stand on a different footing when reviewing the order of a preliminary inquiry judge. This different footing takes into account the principles of fundamental justice in s. 7 of the Canadian Charter of Rights and Freedoms, as well as the alternative remedy available to the Crown of preferring an indictment. McLachlin C.J.C. addressed these considerations in Russell, supra, at 14:
The discrepancy that troubles the Crown is not, in my view, disturbing. As I note above, the governing principle is the same whether an error is challenged by the Crown or by the accused. While it is true that the effect of this principle is that errors as to the essential elements of the crime will, as a general rule, be reviewable when challenged by the accused but not when challenged by the Crown, this disparity reflects the balance of harms: a wrongful discharge does not raise the possibility of a violation of s. 7 of the Canadian Charter of Rights and Freedoms; by contrast, I think it clear that committing an individual to stand trial on a charge for which there is no evidence on one of the essential elements would violate the principles of fundamental justice. I note, moreover, that in circumstances such as were at issue in Tremblay, supra, the Crown is free, subject to the requirements of s. 577 of the Criminal Code, to lay a new information or prefer an indictment There is no analogous remedy available to the accused [emphasis in original].
[35] The reasoning in McLarty and Brown reflects, perhaps, a more traditional view of jurisdictional error than does the decision in Saunders. In the context of s. 548 of the Code, in my opinion, it reflects a more appropriate view. This view, in general terms, limits the question of jurisdiction to whether the preliminary inquiry judge kept within the bounds of the statutory mandate set out in s. 548. It, therefore, accords a broader measure of respect for, or deference to, the decision‑making authority chosen by Parliament.
[36] I acknowledge that in R. v. Dubois (1986), 1986 60 (SCC), 25 C.C.C. (3d) 221 at 230 (S.C.C.), Estey J. wrote that “jurisdictional errors are committed where ‘mandatory provisions’ of the Criminal Code are not followed” and that the requirement in s. 548(1)(b) to consider “the whole of the evidence” before discharging the accused could be characterized as “mandatory”. It seems to me, however, that for several reasons, failing to comply with this kind of provision cannot amount to jurisdictional error. In Dubois, Estey J. explained the kind of mandatory provision he had in mind when he wrote:
Jurisdictional error is committed where “mandatory provisions” of the Criminal Code are not followed, and in the context of s. 475, this means at least that there must be some basis in the evidence proffered for the justice’s decision to commit. There is no jurisdiction to act “arbitrarily”. However, where there is some evidence, it is clearly within the justice’s jurisdiction to come to a decision as to whether that evidence is of sufficient weight to commit. This follows from the statement of Lord Summer in Nat Bell Liquors, supra, at p. 141 C.C.C., p. 13 D.LR., p. 144 S.C.R.:
On certiorari, as far as the presence or absence of evidence becomes material, the question can, at most, be whether any evidence at all was given on the essential point referred to. Its weight is entirely for the inferior Court[.]
[37] Moreover, to accept that a failure to consider “the whole of the evidence” is a jurisdictional error risks turning virtually every error of law into a jurisdictional error. This would be contrary to numerous authorities, including Dubois, which have held that many errors of law are not jurisdictional. Indeed, the mere failure to consider relevant evidence has been held by the Supreme Court of Canada not even to amount to an error of law: see R. v. Morin (1992), 1992 40 (SCC), 76 C.C.C. (3d) 193.
[38] Therefore, I conclude that if the preliminary inquiry judge erred in failing to consider the whole of the evidence she erred within her jurisdiction and, therefore, her decision is not reviewable.
- Did the preliminary inquiry judge commit a jurisdictional error by improperly weighing the evidence?
[39] The Crown has an alternative branch to its argument that the preliminary inquiry judge committed a jurisdictional error in discharging the appellant. It submits that she improperly weighed the evidence she did consider and, therefore, went beyond her limited mandate under s. 548 of the Code. I do not accept this submission.
[40] A preliminary inquiry judge is entitled to “weigh” the evidence in the limited sense of assessing whether it meets the test for committal in Shephard. A. Campbell J. explained this limited weighing function in R. v. McIlwain (1988), 1988 9870 (ON SC), 67 C.R. (3d) 393 (H.C.J.) at p. 399:
“Weigh” in the context of Dubois must mean to ponder and examine the force of evidence; to see if it registers in the scales as any evidence at all to meet the Shephard test. Having weighed the evidence to determine whether it registers in the scales as any evidence at all within the Shephard test, the task of weighing at the preliminary inquiry is complete. That is the task set by Shephard; to weigh or balance in the scales or to measure or to ponder and examine the force of evidence to determine whether or not it is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. That is the sole and very limited purpose for which one weighs or scrutinizes the evidence at a preliminary inquiry. It is not weighed for competing inferences or for frailties or contradictions, but solely to see if it meets the Shephard test.
See also R. v. Campbell, [1999] O.J. No 1203 (Gen. Div.) aff’d, (1999), 1999 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont. C.A.)
[41] If, however, a preliminary inquiry judge goes beyond this limited mandate and encroaches on the role reserved for the trier of fact at trial, then the judge commits a jurisdictional error. Weighing the evidence, as would a trial judge or a jury, is impermissible. In the words of Estey J. in R. v. Dubois, supra, at 231:
In applying the wrong test for sufficiency, a preliminary inquiry judge does not commit jurisdictional error. In deciding an issue reserved to another forum, however, he does.
See also R. v. Campbell, supra, and R. v. Montour, [2002] O.J. No. 141 (C.A.).
[42] Mr. Finley points out in his factum that the risk of impermissible weighing may be greater where, as in this case, the critical evidence is circumstantial because circumstantial evidence likely gives rise to competing inferences. Choosing one reasonable inference that leads to a discharge over another that would support a committal may amount to jurisdictional error. As this court explained in R. v. Campbell, supra, at 166:
Here the preliminary hearing judge rested his decision to discharge the appellants on his “no evidence” findings. However, these findings are not the only factual conclusions that could reasonably be drawn from this evidence. As McCombs J. points out in the passage quoted above, there are other inferences that could reasonably be drawn from all the circumstantial evidence and upon which a reasonable jury, properly instructed, could find the appellants guilty of manslaughter. The preliminary hearing judge, in effect, rejected these other inferences in preference to the factual conclusions which he recited. In doing so he committed jurisdictional error by deciding the question reserved for the trier of fact.
[43] That said, in many cases the line between permissible and impermissible weighing may be very hard to draw. The words of Dickson J., though written in a different context, are relevant in assessing whether that line has been crossed.
The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so.
See Canadian Union of Public Employees v. New Brunswick Liquor Corporation, 1979 23 (SCC), [1979] 2 S.C.R. 227 at 233. In close cases, therefore, a reviewing court should give the benefit of the doubt to the statutory decision maker, here the preliminary inquiry judge.
[44] I am not persuaded that the preliminary inquiry judge improperly weighed the evidence in this case. She expressly asked herself whether she could “draw a reasonable inference… that the device was made of metal”. And, she found that, on the evidence, she could not reasonably do so. In so finding, she did not go beyond her limited mandate.
D. Conclusion
[45] I conclude that the reviewing justice erred in holding that the preliminary inquiry judge committed a jurisdictional error in discharging the appellant on the two counts in the information. I would therefore allow the appeal, set aside the order of the reviewing justice, and restore the order of the preliminary inquiry judge discharging the appellant on both counts.
RELEASED: Feb.25/03
“J.W.M.”
“John Laskin J.A.”
“I agree J.W. Morden J.A.”
“I agree K. Feldman J.A.”