DATE: 20060424

DOCKET: C40913

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – LUCIA GIANCHININ-BELEN and ELBIO VIGNONE (Appellants)

BEFORE:

SIMMONS, MACFARLAND AND ROULEAU JJ.A.

COUNSEL:

Craig F. McLean

for the appellant

Geoffrey Roy

for the respondent

HEARD & RELEASED ORALLY:

March 30, 2006

On appeal from the judgment of Justice P. B. Hockin of the Superior Court of Justice dated October 10, 2003.

E N D O R S E M E N T

[1] The appellants were charged with possession of cocaine for the purpose of trafficking and possession of the proceeds of crime. On April 25, 2003, at the conclusion of the appellants’ preliminary inquiry, Schnall J. made an order discharging the appellants on all counts. Subsequently, on an application for certiorari, Hockin J. found that the preliminary inquiry judge committed jurisdictional error by weighing the evidence and then deciding the issue of knowledge as though she were the trier of fact. The reviewing judge therefore quashed the discharges that had been granted and committed the appellants for trial.

[2] On appeal to this court, the appellants contend that the preliminary inquiry judge did not make a jurisdictional error. Rather, they say that the preliminary inquiry judge considered the whole of the evidence and made a finding that the evidence was insufficient to support a finding of knowledge. In these circumstances, even if the preliminary inquiry judge’s finding was wrong, it was an error within jurisdiction and not subject to review by way of certiorari: see R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 at para. 23.

[3] The issue presented is one of interpreting the preliminary inquiry judge’s reasons and determining whether she weighed the evidence and made a finding based on her view of the strength of the competing inferences, or limited herself to assessing whether the circumstantial evidence was capable of giving rise to an inference of knowledge. The critical passage from her reasons is as follows:

Within 24 hours this confidential source, as I recall his evidence, had been at that address. So it may be a stretch but it could be that someone who had access to the premises could have put that bottle there. Now, that might seem like too much of a stretch, except that we know that there was someone else in that residence who may have had access to the bathroom, and if the proper test is put to a jury and they are appropriately instructed and they are a reasonable jury, what do they now have that would link the pill bottle to either one of the defendants in terms of knowledge of what was in that pill bottle? I agree with the Crown that there is a presumption of control of what is in one’s own home, if one is the resident/occupant and so on of the home. I do not agree that it raises a presumption of knowledge, especially when we know someone else had access to that premises in the previous 24 hours.

[4] As we read the preliminary inquiry judge's reasons, she rejected the possibility that the trier of fact would draw the inference that the occupants of the premises placed the pill bottle in the bathroom and from there, reasoned that an inference of knowledge was not reasonably available. In our view, the preliminary inquiry judge's reasons disclose that, in rejecting the possibility that the occupants put the pill bottle in the bathroom, she impermissibly weighed competing inferences. Put another way, rather than finding that there was no available inference that the occupants of the premises put the pill bottle in the bathroom, the preliminary inquiry judge concluded that the trier of fact would find or have a reasonable doubt whether a third party placed the pill bottle in the bathroom. In so doing, she weighed the evidence and therefore exceeded her jurisdiction. Accordingly, we would not give effect to this ground of appeal.

[5] As an alternative ground of appeal, the appellants say that if the reviewing judge was correct in quashing their discharges, rather than committing them for trial he should have remitted the matter to the preliminary inquiry judge for further consideration in light of his decision.

[6] The Crown agrees with the appellants’ alternative submission but also contends, based on R. v. Thomson (2005), 74 O.R. (3d) 721 (C.A.) and the circumstances of this case, that we should make an order in the nature of mandamus requiring the preliminary inquiry judge to commit the appellants. We reject the Crown’s submission. In our view, in the absence of a proper mandamus application, it would not be appropriate that we order what the Crown requests. However, we agree that Thomson requires that the matter be remitted to the preliminary inquiry judge.

[7] Accordingly, the appeal is allowed in part, the reviewing judge’s order committing the appellants for trial is set aside, and the matter is remitted to the preliminary inquiry judge for further consideration in light of these reasons. The balance of the reviewing judge’s order remains in full force and effect.

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A.”