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 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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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.

[Repealed, 2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

CITATION: R. v. Manasseri, 2010 ONCA 396

DATE: 20100602

DOCKET: C51141 and C51154

COURT OF APPEAL FOR ONTARIO

Doherty, Juriansz and Karakatsanis JJ.A.

BETWEEN

C51141

Her Majesty the Queen

Respondent

and

Charlie Manasseri

Appellant

AND BETWEEN

C51154

Her Majesty the Queen

Appellant

and

George Edward Kenny

Respondent

David Paciocco and Aaron Shull, for the appellant Charlie Manasseri

Alex Alvaro, for the respondent

James Stewart, for the appellant

Howard L. Krongold and J. Michael Spratt, for the respondent George Edward Kenny

Heard: May 4, 2010

(C51141) On appeal from the order of Justice T. David Little of the Superior Court of Justice dated September 25, 2009, quashing the discharge ordered by Justice Paul R. Bélanger of the Ontario Court of Justice on December 9, 2008, and directing that Mr. Manasseri be committed for trial on a charge of second degree murder.

(C51154) On appeal from the order of Justice T. David Little of the Superior Court of Justice dated September 25, 2009, dismissing the application for judicial review of the order of Justice Paul R. Bélanger of the Ontario Court of Justice dated December 9, 2008, discharging Mr. Kenny on charges of manslaughter and assault causing bodily harm.

Doherty J.A.:

I

OVERVIEW

[1] The deceased, Brian Fudge, was assaulted twice in the early hours of New Year’s Day 2005. The first assault occurred inside the Le Skratch Bar in Ottawa; the second occurred a few moments later just outside of that bar. Mr. Fudge was rendered unconscious by the second assault. He never regained consciousness and died about 36 hours later.

[2] The appellant Mr. Manasseri was charged with second degree murder arising out of the first assault. The respondent Mr. Kenny was charged with manslaughter arising out of the second assault on Mr. Fudge. Mr. Kenny was also charged with assault causing bodily harm in relation to Daniel Narraway, Mr. Fudge’s friend, whom Mr. Kenny allegedly punched immediately before striking Mr. Fudge. The Crown did not contend that Mr. Kenny was implicated in the first assault inside the bar or that Mr. Manasseri was implicated in the second assault outside of the bar. On the Crown’s theory, there were two separate transactions.

[3] The charges proceeded at a single preliminary inquiry. After a lengthy hearing, counsel for Mr. Manasseri argued that there was no evidence upon which a reasonable jury could conclude that his assault caused Mr. Fudge’s death. Counsel submitted that Mr. Manasseri should be discharged on the murder charge and committed for trial on a charge of assault causing bodily harm. Counsel for Mr. Kenny argued that there was no evidence upon which a reasonable jury could conclude that he was the perpetrator of the assaults outside of the bar. Counsel submitted that Mr. Kenny should be discharged on both the charge of manslaughter arising out of Mr. Fudge’s death and the charge of assault causing bodily harm relating to the assault on Mr. Narraway.

[4] The preliminary inquiry judge accepted the submissions of both Mr. Manasseri and Mr. Kenny. He discharged Mr. Manasseri on the murder charge and committed him for trial on a charge of assault causing bodily harm. He discharged Mr. Kenny on all counts.

[5] The Crown applied to the Superior Court for judicial review of the discharges and sought an order in the nature of mandamus compelling the preliminary inquiry judge to commit Mr. Manasseri for trial on the murder charge and Mr. Kenny for trial on charges of manslaughter and assault causing bodily harm. The reviewing judge quashed Mr. Manasseri’s discharge and ordered the matter remitted to the preliminary inquiry judge with the direction that Mr. Manasseri be committed for trial on a charge of second degree murder. The reviewing judge found no jurisdictional error in the decision to discharge Mr. Kenny and dismissed the Crown’s application for judicial review.

[6] Mr. Manasseri appeals pursuant to s. 784(1) of the Criminal Code. He asks this court to set aside the order of the reviewing judge and restore the discharge directed by the preliminary inquiry judge. The Crown appeals pursuant to s. 784(1) from the order of the reviewing judge dismissing the application for judicial review of Mr. Kenny’s discharge. The Crown seeks an order quashing the discharge and remitting the matter to the preliminary inquiry judge with a direction that he commit Mr. Kenny for trial on charges of manslaughter and assault causing bodily harm. The appeals were heard together and these reasons address both appeals.

[7] I would dismiss Mr. Manasseri’s appeal. Although, like the reviewing judge, I conclude that the preliminary inquiry judge made jurisdictional error in discharging Mr. Manasseri, I come to that conclusion for different reasons.

[8] I would allow the Crown’s appeal from the order dismissing the application for judicial review of Mr. Kenny’s discharge. The reviewing judge erred in failing to hold that the preliminary inquiry judge made jurisdictional error in discharging Mr. Kenny. I would remit the matter to the preliminary inquiry judge with the direction that Mr. Kenny be committed for trial on the charge of assault causing bodily harm in relation to the assault on Mr. Narraway, and with the further direction that the preliminary inquiry judge determine whether Mr. Kenny should be committed for trial on manslaughter or some lesser charge in relation to the assault on Mr. Fudge.

II

Mr. Manasseri’s Appeal

[9] At the conclusion of the preliminary inquiry, counsel for Mr. Manasseri conceded that there was ample evidence on all essential elements of the second degree murder charge, save causation, to warrant Mr. Manasseri’s committal for trial. Depending on how the causation issue was resolved, Mr. Manasseri would be committed for trial on either a charge of second degree murder or a charge of assault causing bodily harm.

[10] Different witnesses gave different versions of Mr. Manasseri’s assault on Mr. Fudge. Kirsten Doyle, who worked at Le Skratch, testified that she saw Mr. Manasseri and Mr. Fudge arguing at the bar. Mr. Fudge was drunk. Mr. Manasseri, who was taller and heavier than Mr. Fudge, grabbed the back of Mr. Fudge’s head with his right hand and proceeded to bang Mr. Fudge’s head on the bar between 10 and 20 times in rapid succession. According to Ms. Doyle, Mr. Manasseri was screaming and swearing as he banged Mr. Fudge’s head on the bar. Mr. Fudge did not retaliate. Ms. Doyle testified that the right side of Mr. Fudge’s head and face repeatedly struck the bar. After the assault, she noticed a large gash on Mr. Fudge’s right cheek.

[11] Two persons intervened to stop the assault. Mr. Fudge seemed dazed. He was bleeding from the right side of his face. Mr. Narraway noticed that Mr. Fudge’s left ear was “beaten up”.

[12] The manager of the bar wanted Mr. Fudge removed from the premises. Within moments of the first assault, a bouncer escorted him down the stairs and out of the building. The second assault occurred a few steps beyond the bottom of a second flight of stairs outside the bar. The assailant hit Mr. Fudge with one powerful punch to the head, knocking him unconscious.

[13] Mr. Fudge’s condition in the few moments between the first and second assault took on considerable significance for the causation issue. Counsel for Mr. Manasseri argued that Mr. Fudge’s mobility and lucidity, as demonstrated by his conduct between the first and second assault, were inconsistent with the first assault having caused the fatal brain injury described by the medical experts. The Crown argued that although Mr. Fudge was conscious in the moments between the first and second assault, he was far from lucid and his condition was not inconsistent with the first assault having played a significant causative role in his death.

[14] Counsel for Mr. Manasseri relied on evidence of Mr. Fudge’s conduct between the first and second assaults to show a relatively high level of mobility and lucidity, including the following:

• Mr. Fudge swore at and tried to retaliate against Mr. Manasseri;

• When Mr. Narraway asked Mr. Fudge for his coat check ticket, Mr. Fudge produced a piece of paper - albeit the wrong one - and gave a responsive reply;

• Mr. Fudge challenged the bouncer as he was escorted from the bar;

• Mr. Fudge made his way down the stairs outside the bar and successfully grabbed a handrail when he was pushed off balance;

• Mr. Fudge walked unaided for four or five feet after reaching the bottom of the stairs; and

• Mr. Fudge used his cell phone several times and apparently left a message for a friend.

[15] The Crown argued that there was evidence indicating that Mr. Fudge was in considerable distress after the first assault and was barely ambulatory. The Crown referred to the following:

• Mr. Fudge was dazed and appeared dizzy immediately after the assault. He was not able to stand up straight and appeared to be falling over. His eyes were half-closed.

• Mr. Narraway noted that Mr. Fudge had difficulty speaking and walking.

• Mr. Fudge had his arm around the bouncer’s shoulder as he was being escorted from the bar. Mr. Fudge was walking, but the bouncer was “half lifting” Mr. Fudge and pulling him in the direction of the door. Mr. Narraway placed his arm underneath Mr. Fudge’s other arm and assisted the bouncer in leading Mr. Fudge out of the bar.

• Mr. Narraway described the difficulties he had getting Mr. Fudge to understand that he wanted Mr. Fudge’s coat check ticket. Mr. Fudge produced a different piece of paper.

• Mr. Narraway confirmed that Mr. Fudge used his cell phone a number of times, but he had no idea who Mr. Fudge was calling or what he was saying.

• According to Mr. Narraway, Mr. Fudge walked only four or five feet under his own power at the bottom of the stairs before being hit by the second assailant.

[16] Mr. Fudge died as a result of brain swelling that led to a lack of blood supply to the brain and, ultimately, brain death. That swelling was caused by trauma. The respective roles played by the trauma caused by the two assaults became the focus of the causation controversy at the preliminary inquiry.

[17] Dr. Ayroud, a forensic pathologist, performed the autopsy. In her written report, she described the cause of death as “closed head injury consistent with consequences of blunt force impact to the left side of the head”. Subsequently, she altered her opinion to take into account significant damage to the brain which she described as traumatic diffuse axonal injury (“DAI”). The doctor explained that DAI is caused by a sudden, rapid angular acceleration or deceleration of the head. This type of movement causes shear damage to the axons of the nerves. Dr. Ayroud observed brain swelling, which caused damage to the small blood vessels in the midline structures of the brain, cutting off blood supply to the brain and ultimately leading to brain death. Dr. Ayroud also noted a subdural haematoma which, in her view, resulted from the tearing of veins caused by rotational forces. Dr. Ayroud observed little external evidence of injury to the head. The brain damage was, however, significant and involved virtually the entire brain.[^1]

[18] Dr. Ayroud was questioned closely by counsel as to which of the two assaults caused or contributed to the brain injuries she observed. Counsel put various factual scenarios to Dr. Ayroud and elicited different opinions. In his reasons, the preliminary inquiry judge referred to Dr. Ayroud’s evidence as “confused, confusing, difficult and complex.” He described her opinions as having “fluctuated wildly over time.” In fairness, it must be said that the factual scenarios put to Dr. Ayroud by counsel also fluctuated.

[19] During examination-in-chief, Crown counsel put a hypothetical to Dr. Ayroud that, in his view, reflected the evidence describing the first assault on Mr. Fudge, Mr. Fudge’s conduct between the first and second assaults, and the second assault. Based on that hypothetical, Dr. Ayroud expressed the opinion that the DAI she observed was consistent with the kind of injury that would have followed the first assault. She opined that Mr. Fudge would have succumbed to the injuries caused by the first assault even if he had not suffered a second assault.

[20] On cross-examination by counsel for Mr. Manasseri, Dr. Ayroud acknowledged that the DAI she observed could have been caused by a single hard blow to the head if that blow caused the necessary rotational forces. Dr. Ayroud was questioned about the effect of Mr. Fudge’s level of physical activity and lucidity after the first assault on her opinion. Counsel for Mr. Manasseri put various parts of the evidence to Dr. Ayroud, including the assertion that Mr. Fudge had walked down the stairs. After counsel referred to the evidence that he relied upon to show that Mr. Fudge was physically active and lucid after the first assault, the following exchange occurred between counsel and Dr. Ayroud:

Q. And if everything I’m telling you is true, that means that the first incident, inside the bar, could not have been the cause of what you saw in that boy’s brain, correct?

A. Then, it would ... basically, it reverses the ... that’s correct.

It would reverse the opinion that the majority of the damage was done upstairs, if everything that you told me is true. And it would bring back, to my initial conclusion, a secondary blow to the left side of the head. [Emphasis added.]

[21] Counsel for Mr. Kenny cross-examined Dr. Ayroud after counsel for Mr. Manasseri. In that cross-examination, Dr. Ayroud indicated that it was important to her opinion whether Mr. Fudge was “dead weight and had to be helped to go down the stairs” or went down the stairs on his own, used his cell phone, and did the various other activities that some of the witnesses attributed to him. Dr. Ayroud agreed with counsel for Mr. Kenny that there is some potential for a period of transient, semi-lucid conduct followed by neurological deterioration when a person has suffered traumatic DAI.

[22] Counsel for Mr. Kenny focussed on Mr. Narraway’s description of Mr. Fudge’s condition after the first assault. According to that description, the bouncer and Mr. Narraway assisted Mr. Fudge on his way out of the bar by holding on to either side of him. Mr. Fudge walked only a few feet after reaching the bottom of the stairs. Dr. Ayroud agreed with the suggestion by counsel that Mr. Narraway’s description was consistent with Mr. Fudge having suffered a significant blow to the head inside the bar. Counsel for Mr. Kenny’s cross-examination in this area concluded with the following:

Q. Are we not really back? Given Mr. Narraway’s evidence, given that it substantially accords with what you were advised by the police on January 6th, are we not simply really back, in your expert opinion, to what you told the police? And that was: “the second incident did not contribute to the death. In fact, there is no sign that there was a second incident”.

A. With what you have been presenting to me so far, yeah, we’re nearly back to square one. [Emphasis added.]

[23] The preliminary inquiry judge concluded that the totality of Dr. Ayroud’s evidence did not provide a basis upon which a reasonable trier of fact could find that the assault perpetrated by Mr. Manasseri caused Mr. Fudge’s death. In reaching that conclusion, he held that Dr. Ayroud’s opinion that Mr. Manasseri’s assault caused Mr. Fudge’s death was based on a hypothetical that was inconsistent with the actual evidence and was, therefore, of no evidentiary value. After reviewing what he saw as the differences between the hypothetical and the evidence, the preliminary inquiry judge said:

[O]n the state of the evidence at this preliminary inquiry, a jury simply would have insufficient evidence to be able to determine which assault caused the fatal injuries, or if both assaults together contributed to the fatal injuries.

[24] The reviewing judge took a different view of the evidence. He did not see the medical opinion evidence as essential to a determination of whether there was sufficient evidence of causation to commit Mr. Manasseri for trial on the murder charge. He held:

The cause is force to the head. Force to the head was administered by Manasseri. Sufficient force, in fact, to entitle a reasonable jury, properly instructed, to find the requisite intent for second degree murder. This is so particularly if Doyle is believed. Her evidence, together with the evidence of the other eyewitnesses, is sufficient evidence to conclude that this first assault was a substantial contributing factor to the death of the victim, irrespective of the speculation of the experts, some of which was based on “readings”.

[25] I agree with counsel for Mr. Manasseri’s submission that the reviewing judge’s analysis ignores the potential impact of the second assault on any causal relationship between Mr. Fudge’s death and the assault by Mr. Manasseri. While the reviewing judge’s reasoning may have been appropriate absent evidence of the second assault, the potential impact of that second assault on the question of causation could not be ignored in determining whether Mr. Manasseri should be committed for trial on the murder charge. The reviewing judge should have considered the entirety of the record, including the opinions advanced by Dr. Ayroud, in determining whether the preliminary inquiry judge had made jurisdictional error in discharging Mr. Manasseri on the murder charge.

[26] I also agree with counsel for Mr. Manasseri’s submission that Dr. Ayroud’s opinion evidence does not constitute direct evidence of causation warranting a committal for trial without any weighing of that evidence: see R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 at para. 16. Factual causation is a matter of inference from proven facts. In this case, the body of evidence from which the inference of causation might be drawn included evidence of the nature of the assaults, Mr. Fudge’s condition between the two assaults, Mr. Fudge’s loss of consciousness immediately after the second assault and Dr. Ayroud’s observations of the brain during her post-mortem examination. Because of her expertise, Dr. Ayroud was permitted to give her opinion as to the appropriate inference to be drawn from those facts.

[27] As with other forms of circumstantial evidence, the preliminary inquiry judge was required, under the terms of s. 548(1) of the Criminal Code, to assess the circumstantial evidence of causation and decide whether there was “sufficient evidence” on the issue of causation to put Mr. Manasseri on trial for murder. In making that assessment, he had to engage in a limited weighing of the evidence relevant to the question of causation. As explained in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para. 23:

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asked the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Emphasis added.]

[28] On a judicial review application, the reviewing court does not simply redo the limited weighing function assigned to the preliminary inquiry judge. The reviewing court can interfere only if jurisdictional error is established: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 at paras. 19-48. The jurisdictional error inquiry looks not at the correctness of the ultimate decision, but at whether the preliminary inquiry judge exceeded or declined to exercise his or her jurisdiction in the course of arriving at that decision. A preliminary inquiry judge who goes beyond the limited function assigned to him or her under s. 548(1), or who fails to consider all of the evidence when exercising that function, acts beyond his or her jurisdiction: Sazant at para. 18; R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601; R. v. Campbell (1999), 140 C.C.C. (3d) 164 (Ont. C.A.) at para. 7.

[29] With respect to the preliminary inquiry judge, who carefully considered the evidence, I think he exceeded his jurisdiction by failing to consider relevant evidence and by effectively choosing from among competing inferences available on the evidence. These two jurisdictional errors led him to conclude that Dr. Ayroud’s opinion that Mr. Manasseri’s assault caused Mr. Fudge’s death had no evidentiary value because it was based on a hypothetical that had no basis in the evidence.

[30] The first jurisdictional error arose in the preliminary inquiry judge’s consideration of the evidence relating to the manner in which Mr. Fudge’s head hit the bar. The preliminary inquiry judge observed:

There is no evidence that just before hitting the bar, his head is turned looking sideways. This is important because the doctor’s opinion assumes a rotational movement of the victim’s head. [Emphasis in original.]

[31] I think this finding of “no evidence” ignores the evidence of Ms. Doyle. She saw Mr. Manasseri grab Mr. Fudge’s head from behind while both men were standing at the bar. Mr. Manasseri proceeded to push Mr. Fudge’s head down against the bar, with great force, several times. According to Ms. Doyle, the side of Mr. Fudge’s face repeatedly hit the bar. A reasonable trier of fact could well conclude that, based on Ms. Doyle’s description, Mr. Fudge’s head was turning or rotating to the side as it collided with the bar on several occasions. The preliminary inquiry judge either ignored Ms. Doyle’s description of the blows to the head,[^2] or he weighed that evidence and found it insufficiently cogent to warrant an inference as to the movement of Mr. Fudge’s head as it hit the bar. Either way, I think the preliminary inquiry judge exceeded his jurisdiction.

[32] The preliminary inquiry judge also discounted Dr. Ayroud’s opinion that Mr. Manasseri’s assault caused Mr. Fudge’s death because, in his view, it was based on a hypothetical that “seriously understates the evidence about the deceased’s behaviour between the first and second assault.” The preliminary inquiry judge could come to that conclusion only if he selected from among the various and somewhat conflicting descriptions of Mr. Fudge’s behaviour between the first and second assault, and if he drew his own inferences as to the level of Mr. Fudge’s lucidity and consciousness based on those descriptions. Both functions are beyond the limited weighing function assigned to a preliminary inquiry judge.

[33] Dr. Ayroud’s evidence made it clear that Mr. Fudge’s level of lucidity between the two assaults was an important consideration for her in determining whether the first assault caused death. The questions put to her by counsel also made it clear that different witnesses had different descriptions of Mr. Fudge’s conduct. For example, Mr. Narraway’s perception of his friend’s lucidity was considerably different than some other witnesses. Furthermore, as the preliminary inquiry judge himself pointed out during questioning, Mr. Fudge’s conduct was open to different interpretations insofar as it was said to reflect his level of consciousness or lucidity. For example, the use of a cell phone may say little or a great deal about one’s level of lucidity. In my view, these were all matters for trial and not for a preliminary inquiry judge performing the limited weighing function assigned to him or her under s. 548(1).

[34] Having regard to the entirety of the preliminary inquiry judge’s reasons, I conclude that he exceeded the limited authority granted to him under s. 548(1) of the Criminal Code by failing to consider evidence relevant to the nature of the first assault, and by weighing the conflicting evidence and the inferences with respect to Mr. Fudge’s lucidity to be drawn from that conflicting evidence, and thereby committed jurisdictional error.

[35] Counsel for Mr. Manasseri advances an alternative argument. He submits that even if there was a basis for a finding of factual causation sufficient to warrant a committal for trial, there was no basis upon which the first assault could be found to be the legal or imputable cause of death. Counsel quite properly observes that both are necessary before liability for a homicide can be imposed: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488 at paras. 44-45. Counsel contends that, absent a basis for finding legal causation, Mr. Manasseri should not have been committed for trial.

[36] Counsel submits that where an independent actor attacks a victim after an accused has done so and accelerates the death of that victim, the accused can no longer be said as a matter of law to have caused the death even if the assault by the accused remains a factual cause of death: R. v. Munro (1983), 8 C.C.C. (3d) 260 at 290-91 (Ont. C.A.).

[37] Counsel’s submissions raise an interesting and difficult legal point. However, it is not ripe for determination at this stage of the proceedings. Given the nature of the evidence, there is a basis upon which a reasonable jury could view the first assault as the one and only factual cause of death. On that view, legal causation would not arise as an issue distinct from factual causation. While it is certainly possible that a trial judge and perhaps a jury will ultimately have to grapple with the legal and factual implications of two separate and independent assaults that caused or contributed to Mr. Fudge’s death, this concern does not affect whether Mr. Manasseri should be committed for trial on the murder charge.

[38] For the reasons set out above, I would affirm the order quashing Mr. Manasseri’s discharge on the charge of second degree murder, remitting the matter to the preliminary inquiry judge and directing him to commit Mr. Manasseri for trial on that charge.

III

The Crown’s Appeal

[39] The preliminary inquiry judge found that the evidence relied on by the Crown to identify Mr. Kenny as the perpetrator of the second assault on Mr. Fudge and the assault on Mr. Narraway could not justify committal. He said:

[N]one of the evidence offered amounts to some evidence upon which a reasonable jury, properly instructed, could return a finding of guilt. No evidence meets the threshold requirement of positive identification. The evidence of identification at this preliminary hearing, even if believed and totally unanswered, could not support a finding of guilt against George Kenny.

[40] The reviewing judge agreed with the preliminary inquiry judge’s characterization of the identification evidence as circumstantial rather than direct. He further held that the preliminary inquiry judge had not gone beyond his limited role in weighing the evidence said to be relevant to identifying Kenny as the perpetrator of the second assault. The reviewing judge concluded:

I find that the [preliminary inquiry judge] made no jurisdictional error in discharging Kenny. He reviewed the evidence in its entirety and found no evidence rather than some evidence. [Emphasis in original.]

[41] Mr. Stewart, in his most persuasive argument for the Crown, acknowledged that the identification evidence was far from strong. He referred to the following evidence as relevant to the issue of identification:

• There was evidence placing Mr. Kenny in Le Skratch Bar and in the immediate vicinity of the second assault when it occurred.

• The evidence describing the perpetrator and his clothing was consistent with Mr. Kenny’s description and the clothing he was wearing at the time of the assault;

• Identification evidence from Michael Garrick, Mr. Fudge’s friend;

• Identification evidence from Michael Delorme, the doorman at Le Skratch Bar on the evening of the assault; and

• Evidence of “association” between Mr. Kenny and the initial assault.

[42] I begin my consideration of the Crown’s appeal by eliminating the evidence of so-called “association” between Mr. Kenny and the first assault. Like the preliminary inquiry judge, I think this submission invites pure speculation rather than inference drawing. I also eliminate the evidence of Michael Garrick. Again, like the preliminary inquiry judge, I think his evidence purporting to identify Mr. Kenny must be read in its entirety. When read as a whole, his evidence is no evidence of identification.

[43] I do, however, accept that the other parts of the evidence relied on by the Crown offer some evidence of identification. There was evidence placing Mr. Kenny in the immediate vicinity of the assault when it occurred. The assailant was described as a white, young, muscular man who was taller than Mr. Fudge and had a shaved head. Mr. Kenny fit that description. The assailant was described as wearing a dark t-shirt with a graphic on the front. Mr. Kenny was wearing a shirt that fit that description.

[44] Michael Delorme, a doorman, observed the second assault. He knew Mr. Kenny as a person who frequented the bar from time to time. He testified that Mr. Fudge and Mr. Narraway were both “sucker punched” with a “superman” punch at the bottom of the stairs. Mr. Delorme saw Mr. Fudge fall backwards and hit his head on the pavement.

[45] Mr. Delorme was asked if he recognized the person who assaulted Mr. Fudge. He replied, “A little bit, yeah”. He identified that person as George Kenny. When asked how certain he was that the person was Mr. Kenny, he replied:

I’m – I’m pretty sure but, I mean, it was awhile ago. I mean, it was New Year’s Eve. I had a couple of drinks. I know he was at the top of the bar. I know he was one of the people that left afterwards, but I’m not a hundred per cent if it was him, actually, that – that struck him.

[46] In cross-examination, Mr. Delorme agreed that the assault occurred very quickly, that it was dark, that he had been drinking, and that he saw the assailant from behind and from a considerable distance.

[47] The Crown also led evidence that, five days after the assault, Mr. Delorme picked a photograph of Mr. Kenny out of a photo line-up. According to the officer conducting the photo line-up, Mr. Delorme had indicated that the photograph of Mr. Kenny “looks like” the person who committed the assault at the bottom of the stairs.

[48] Mr. Delorme had a somewhat different recollection of the line-up. He testified that he was told to go through the pictures and to say if anybody looked familiar. According to Mr. Delorme, he selected the photograph of George Kenny because he knew Mr. Kenny and Mr. Kenny was there that night. He did not testify that he selected a photograph of Mr. Kenny because he believed that Mr. Kenny was the perpetrator of the second assault.

[49] The preliminary inquiry judge considered Mr. Delorme’s evidence in detail and concluded that “none of it 'identifies Kenny as the assailant'”. The reviewing judge referred to Mr. Delorme’s evidence as neither “direct” evidence of identification, nor “positive” evidence of identification.

[50] The reviewing judge’s characterization of Mr. Delorme’s evidence is not inaccurate, but it misses the point that should be engaged on a review for jurisdictional error. The preliminary inquiry judge considered Mr. Delorme’s evidence as standalone evidence of identification. He did not place that evidence in the context of the rest of the evidence relevant to the question of identification and assess the sufficiency of the totality of that evidence.

[51] Mr. Delorme’s testimony that he was “pretty sure” but not “a hundred per cent” sure that Mr. Kenny was the assailant had to be placed in the context of evidence that put Mr. Kenny at the scene of the assault and evidence that Mr. Kenny matched the description of the assailant. Mr. Delorme’s testimony also had to be considered in light of his selection of a photograph of Mr. Kenny in a photo line-up a few days after the assault. This evidence was particularly relevant given Mr. Delorme’s claim that the passage of time had reduced the certainty with which he could identify the perpetrator of the second assault. The fact that Mr. Delorme had identified Mr. Kenny within a few days of the assault could enhance the reliability of his testimony.

[52] In R. v. Tat (1997), 35 O.R. (3d) 641 (C.A.) at p. 656, this court explained the potential probative value of evidence of previous identifications by a witness where that witness gives identification evidence at trial:

If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment. [Emphasis added.]

[53] There was evidence at the preliminary inquiry from the police officer who conducted the photo line-up from which it could be inferred that Mr. Delorme was asked to pick out the perpetrator of the assault. The fact that Mr. Delorme testified that he was merely told to pick out anyone he recognized does not, for the purpose of determining the question of committal, detract from the availability of the inference that he was asked to identify the perpetrator. Based on the officer’s evidence, a reasonable trier of fact could use the selection of Mr. Kenny in the photo line-up to enhance the value of Mr. Delorme’s testimony that he was “pretty sure” that Mr. Kenny was the perpetrator of the second assault.

[54] A failure to consider all of the evidence relevant to a fact in issue when determining the sufficiency of the evidence for the purposes of s. 548(1) is a jurisdictional error: Sazant at para. 22; Deschamplain at para. 18. As was said in Deschamplain:

It follows that Parliament never intended to allow decisions on the discharge of an accused to be made without full regard to all of the evidence. In my view, it is a jurisdictional error for a preliminary inquiry judge to fail to consider the “whole of the evidence” as required under s. 548(1)(b) ... .

[55] The reviewing judge erred in limiting his analysis to the proper characterization of Mr. Delorme’s testimony rather than considering whether the preliminary inquiry judge had properly addressed Mr. Delorme’s evidence in the context of the rest of the evidence. For the reasons set out above, I am satisfied that the preliminary inquiry judge did not properly address the entirety of the evidence relevant to identification and thereby committed jurisdictional error. On a review of the entirety of that evidence, there was sufficient evidence to identify Mr. Kenny as the perpetrator of the second assault.

[56] The order dismissing the application for judicial review should be set aside. The order discharging Mr. Kenny should also be set aside. The matter should be remitted to the preliminary inquiry judge with a direction to commit Mr. Kenny for trial on the charge of assault causing bodily harm as it relates to Mr. Narraway: see R. v. Thomson (2005), 74 O.R. (3d) 721 (C.A.).

[57] Crown counsel and counsel for Mr. Kenny agree that there may be an issue of causation in relation to the charge of manslaughter. The preliminary inquiry judge did not address that issue. Consequently, I would return the matter to the preliminary inquiry judge to determine whether Kenny should be committed for trial on the manslaughter charge or some lesser and included offence: see B. Gover and V. Ramrag, The Criminal Lawyers’ Guide to Extraordinary Remedies (Aurora, Ont.: Canada Law Book, 2000) at p. 39.

RELEASED: “DD” JUN 02 2010”

“Doherty J.A.”

“I agree R.G. Juriansz J.A.”

“I agree A. Karakatsanis”

[^1]: A second pathologist, Dr. Dexter, testified but I need not review his evidence.

[^2]: The preliminary inquiry judge does refer to Ms. Doyle’s evidence later in his reasons, but only to suggest the assault she described is inconsistent with the near absence of facial trauma. That observation has no relevance to the question of whether Ms. Doyle’s evidence provided the basis for a finding that Mr. Fudge’s head was turning or rotating when it hit the bar.