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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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(4) [Repealed, 2005, c. 32, s. 18(2).]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.
CITATION: R. v. Gray, 2012 ONCA 7
DATE: 20120105
DOCKET: C54575
COURT OF APPEAL FOR ONTARIO
Sharpe, Blair and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Brandon Gray
Appellant
Victoria Rivers, for the appellant
Shawn Porter, for the respondent
Heard & released orally: December 22, 2011
On appeal from the order of Justice Michael J. Quigley of the Superior Court of Justice dated October 21, 2011.
ENDORSEMENT
[1] The appellant argues that the application judge erred by granting certiorari to quash a committal for trial for manslaughter and committing him for second degree murder.
[2] There are two issues:
Did the application judge err by concluding that the preliminary inquiry judge fell into jurisdictional error when he failed to commit the appellant for trial on the charge of second degree murder?
Did the application judge err by committing the appellant for trial on second degree murder rather than remitting the matter to the preliminary inquiry judge?
1. Jurisdictional error
[3] After reviewing the evidence and the preliminary inquiry judge’s reasons, the application judge concluded as follows at para. 30:
I find that Justice Hunter did commit jurisdictional error by favouring inferences to the benefit of the respondent without regard to inferences which might well be favourable to the Crown’s position. I further find that Justice Hunter did not look at the totality of the evidence notwithstanding the fact that his reasons indicated that he had done so.
[4] In our view, the application judge applied the correct test. It is well established that a preliminary inquiry judge falls into jurisdictional error where he or she prefers an inference favourable to the accused over an inference favourable to the Crown or by failing to consider the whole of the evidence: see e.g. R. v. Sazant (2004), 2004 SCC 77, 208 C.C.C. (3d) 225 (S.C.C.).
[5] It is also our view that it was clearly open to the application judge to conclude that the preliminary inquiry judge had committed both types of error. On our reading of the preliminary inquiry judge’s reasons, the exercise he engaged in was much more akin to weighing the evidence and trying the case than to assessing the sufficiency of the evidence for trial. That, in our view, amounts to jurisdictional error.
[6] The preliminary inquiry judge concluded that there was no evidence of the force the appellant used to inflict blows on the victim. That conclusion could only have been reached by either ignoring evidence or preferring an inference favourable to the accused over a possible inference in favour of the Crown. There was evidence that the appellant knocked the intoxicated and defenceless victim unconscious with a head butt and that the appellant was then a party to a more than two on one vicious assault on the unconscious victim resulting in a broken jaw and a severed carotid artery.
[7] Likewise, the preliminary inquiry judge’s conclusion that there was no evidence of common purpose or intent to link the appellant to the other participants in the attack can only be explained on the basis that he either ignored evidence or the possible inference that could be drawn from the fact that the appellant approached the victim on the road with Francis and that it was likely Francis who yelled to the others “come on and get some of this” inviting the others to participate in the attack.
[8] We also agree with the respondent that the preliminary inquiry judge’s conclusion that there was no evidence of animus capable of supporting an inference of intent could only have been reached by ignoring the evidence of the foul and insulting language used by the appellant, the fact that the appellant and Francis went out to meet the victim after the initial altercation and the evidence that on the night in question, the appellant was looking for a fight.
2. Committing for trial on second degree murder
[9] The respondent concedes that the application judge erred by committing the appellant for trial on second degree murder: see R. v. Thomson (2005), 2005 8664 (ON CA), 74 O.R. (3d) 721 (C.A.).
[10] While the Crown does not appear to have asked the application judge in either or written submissions to issue an order of mandamus, it is clear from the notice of application and from the reasons of the application judge that there was an application for mandamus in aid of certiorari.
[11] In our view, in these circumstances, the appropriate order is to allow the appeal in part and issue a mandamus order remitting the matter to the preliminary inquiry judge requiring him to commit the appellant for trial on the charge of second degree murder.
“Robert J. Sharpe J.A.”
“R.A. Blair J.A.”
“Paul Rouleau J.A.”