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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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(4) [Repealed, 2005, c. 32, s. 18(2).]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

CITATION: R. v. Wilson, 2016 ONCA 235

DATE: 20160331

DOCKET: C61452

Strathy C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Blake Wilson

Respondent

Dena Bonnet, for the appellant

Ariel Herscovitch, for the respondent

Heard: March 16, 2016

On appeal from the order of Justice Nola Garton of the Superior Court of Justice, dated November 20, 2015, with reasons reported at 2015 ONSC 7224, quashing the order of Justice J.M. Grossman of the Ontario Court of Justice, dated September 22, 2014, committing the appellant to stand trial for first degree murder.

Benotto J.A.:

[1] Firefighters responding to a fire alarm found a 72-year-old woman dead in her apartment. She died of neck compression and there was semen in her mouth. The respondent was charged with first degree murder based on the allegation that he caused her death while committing or attempting to commit a sexual assault.

[2] The preliminary inquiry judge committed the respondent to stand trial on first degree murder. On review, the Superior Court judge determined that there was no evidence upon which a properly instructed jury could conclude that the victim had not consented to the sexual contact. There was therefore no evidence of a sexual assault. The reviewing judge determined that the respondent should stand trial on second degree murder.

[3] The Crown appeals the decision of the reviewing judge and seeks to have the first degree murder charge reinstated. Before this court, there was no issue as to identity. Nor was there an issue that the respondent had a sexual encounter with the victim. The sole issue on appeal is whether there was evidence that a sexual assault had taken place.

Facts

[4] In the early afternoon of July 13, 2013, firefighters entered an apartment in response to a fire alarm. They found the deceased on the bed. Her head and shoulders were lying on the foot of the bed and the rest of her body was lying on the floor.

[5] Dr. Pollanen, Ontario's chief forensic pathologist, testified about the deceased's injuries. She had bruises on her body around her right and left shoulder blades, her left buttock, and the muscles in the back or nape of her neck. There was also had bleeding under the skin of her neck on the top of the voice box and a fracture on the left side of her larynx. Dr. Pollanen said that significant force was required to overcome the rigid strength of the cartilage in the neck and throat area. The force would have been close to the amount necessary to break a bone. The cause of death was "neck compression". She died before the fires were set.

[6] Dr. Pollanen opined that these injuries were caused while she was alive by something forcibly hitting her or by her body forcibly striking something. He concluded that the injuries reflected by these bruises occurred at around the same time as the injuries to her neck – that is, between a few minutes and a few hours before death.

[7] Joanne Cox, a forensic biologist with the Centre of Forensic Sciences, testified that semen was swabbed from the deceased's mouth. The DNA profile matched the respondent.

[8] There were surveillance cameras in the apartment building where the deceased lived. Video showed a male exiting the elevator on the deceased's floor and walking down the hallway at approximately 12:00 p.m. The same man was seen leaving the west stairwell of the apartment building at 1:08 p.m. In the 1:08 p.m. video, the man is wearing a shirt and carrying another identified as belonging to the victim's roommate.

[9] The fire alarm sounded at 1:12 p.m. and firefighters arrived four minutes later. Investigators determined that three individual fires had been deliberately set in the deceased's apartment.

[10] At about 2:12 p.m. on the day of the murder, the individual seen on the surveillance video in the deceased's building attempted to take money from an ATM at the subway entrance of the College Park complex with the access card issued to the deceased.

[11] There was evidence of an advertisement in NOW magazine with the deceased's registered phone number suggesting she was a sex-trade worker. The cell phone that was in the respondent's possession when he was arrested made two calls to the deceased on the night before her murder. On July 13, 2013, his phone was used to make three calls to her at 11:47 a.m., 11:50 a.m., and 12:04 p.m. The deceased received and answered four other calls after 12:04 p.m. The last one was answered at 12:28 p.m., when she stopped answering calls.

The Preliminary Inquiry

[12] The preliminary inquiry judge committed the respondent to stand trial for first degree murder pursuant to s. 231(5)(b) of the Criminal Code, R.S.C. 1985, c. C-46, which provides:

231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(b) section 271 (sexual assault)

[13] The preliminary inquiry judge considered the evidence and found that a reasonable inference could be drawn that a sexual assault had been committed. He found that – although an inference could be drawn that the deceased consented to the sexual contact given that she was engaged in sex work – there was also support for the inference that she did not consent to the sexual contact. In his view, the evidence of Dr. Pollanen regarding the deceased's injuries gave rise to the reasonable inference that consent was not present when semen was deposited in her mouth. He found that it could be reasonably inferred that she was killed in her apartment before the fire occurred.

[14] He relied on the phone records that show that the deceased did not answer her phone after 12:28 p.m., the video footage of the male person leaving at around 1:08 p.m., and the fire alarm generated at 1:12 p.m. He found that it was reasonable to infer that between 12:30 p.m. and 1:08 p.m. an act of oral sex occurred, a significant degree of force was applied to the victim causing injuries, neck compression was applied that caused the victim's death, and three fires were set. He concluded that the nature of the injuries and neck compression causing death dramatically took events out of the arena of consensual behaviour and constituted evidence on which a reasonable jury, properly instructed, could return a verdict of guilt for first degree murder.

[15] In summary, he concluded that even if consent could be inferred, the evidence also supported the inference that consent was not present.

Certiorari Application

[16] The respondent brought an application to quash his committal on first degree murder on the basis that there was no evidence on which a reasonable jury, properly instructed, could find that he committed a sexual assault on the deceased. He conceded that there was sufficient evidence to support his committal on second degree murder.

[17] The reviewing judge allowed the application. She found that, other than the violence involved in the murder, there was no evidence of a sexual assault. She referred to evidence from which consent could be inferred: the accused's attendance at the apartment was for sexual services in response to the advertisement in NOW magazine; the telephone contact between the accused and the deceased; the absence of any evidence of forced entry; the absence of evidence of a pre-existing relationship between the accused and the deceased to suggest any other reason for the phone calls than to set up an appointment for sexual services; and the presence of semen from at least one other male in the deceased's vaginal cavity.

[18] In the reviewing judge's view, the preliminary inquiry judge conflated the fact that the deceased's death was caused by a violent non-consensual act with the question of whether the sexual activity was non-consensual. Simply put, she found there was no evidence to bridge or link the act of violence to the sexual act.

Issue on Appeal

[19] There is only one issue to be determined: was there evidence of a sexual assault upon which, if believed, a jury could find that the killing occurred while the respondent was committing a sexual assault? If so, then the preliminary inquiry judge did not exceed his jurisdiction. If not, then the reviewing judge was correct to conclude that he did. This analysis requires a consideration of the respective roles of the preliminary inquiry judge and the reviewing judge.

The Role of the Preliminary Inquiry Judge

[20] Subsection 548(1) of the Criminal Code reads as follows:

548 (1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) 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 or any other indictable offence in respect of the same transaction.

[21] The test for committal is well settled: is there any evidence on which a reasonable jury properly instructed could return a guilty verdict? A preliminary inquiry judge must commit the accused to stand trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction": United States of America v. Shephard, [1976 8 (SCC)], [1977] 2 S.C.R. 1067, at p. 1080.

[22] The test is the same whether the evidence is direct or circumstantial. However, with circumstantial evidence, there is an inferential gap between the evidence and the matter to be established. The question becomes whether the elements of the offence to which the Crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence.

[23] The preliminary inquiry judge must therefore engage in a limited weighing of the evidence to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This does not entail considering whether he or she would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. Rather, the preliminary inquiry judge asks whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, [2001 SCC 54], [2001] 2 S.C.R. 828, at paras. 1 and 23.

[24] Any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the prosecution's favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R. v. Sazant, [2004 SCC 77], [2004] 3 S.C.R. 635, at para. 18. To weigh competing inferences is to usurp the function of the trier of fact: R. v. Clarke(2002), [2002 44997 (ON CA)], 159 O.A.C. 221, at para. 4.

The Role of the Reviewing Judge

[25] The scope of certiorari review is "very limited": R. v. Russell, [2001 SCC 53], [2001] 2 S.C.R. 804, at para. 19. In R. v. Manasseri, [2010 ONCA 396], 276 C.C.C. (3d) 406, at para. 28, Doherty J.A. explained:

[T]he 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. 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. [Citations omitted.]

[26] As summarized in R. v. Martin, [2001 4971] (Ont. C.A.), at para. 3:

It is well settled that where there is a scintilla of evidence upon which the preliminary inquiry judge could conclude that the test is satisfied, a reviewing court should not intervene to quash the committal. See also R. v. Russell, where the Supreme Court of Canada reaffirmed the limited scope of review on certiorari to review committals for trial and reiterated that a preliminary inquiry judge's determination of the sufficiency of evidence is entitled to the greatest deference. It is only if there is no evidence on an element of the offence that a reviewing court can vacate the committal. [Citations omitted.]

[27] A preliminary inquiry judge commits a jurisdictional error by committing an accused when an essential element of the offence is unsupported by the evidence. However, that does not entail the reviewing judge asking whether she would have arrived at a different result. As the majority in R. v. Deschamplain, [2004 SCC 76], [2004] 3 S.C.R. 601, explained at para. 23: "[I]t would be improper for a reviewing court to intervene merely because the preliminary inquiry judge's conclusion on sufficiency differs from that which the reviewing court would have reached".

[28] A preliminary inquiry judge's determination is therefore entitled to the greatest deference. The reviewing judge must only decide whether there was an evidentiary basis on which the court below could form the opinion that the evidence was sufficient to justify a committal for trial.

Analysis

[29] I have concluded that the preliminary inquiry judge did not exceed his jurisdiction. There was evidence upon which a reasonable jury, properly instructed, could reasonably infer that the sexual encounter was not consensual. Therefore, the reviewing judge exceeded the limited scope of permissible review by interfering with the committal on first degree murder.

[30] The whole of the evidence before the preliminary inquiry judge grounded the inferences he drew. David Watt in Watt's Manual of Criminal Evidence (Toronto: Carswell, 2014), at § 9.01, defines inferences:

An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture. [Emphasis in original.]

[31] In my view, there were facts in the evidence before the preliminary inquiry judge from which a lack of consent to the sexual act could be logically and reasonably drawn. The nature and location of the injuries, the position of the deceased on the bed, and the amount of time the attacker was in the apartment – all taken together with the remaining evidence – form a group of facts from which a reasonable inference of lack of consent could be drawn. I turn to the significance of these facts.

[32] The victim's injuries were concentrated on her throat, the nape of her neck, upper back, and buttock. Significant force was required to inflict these injuries. She was found with her head and shoulders on the bed and her feet and the rest of her body off the bed. The jury could infer that this reflects her last position when alive, and is consistent with a position in which the sexual act would take place. The location of these injuries on the upper part of her body and the position of her body allow for the reasonable inference that the oral sex was – at least at some point – forced.

[33] There is also the time frame. At its longest, the attacker was in the apartment from 12:00 p.m. to 1:08 p.m. – slightly over an hour. The deceased stopped answering her phone at 12:28 p.m. Because of the phone calls that the deceased was receiving and answering until 12:28 p.m., the preliminary inquiry judge inferred that the sexual activity and the deceased's death occurred sometime in the 40 minutes between that time and when the attacker left at 1:08 p.m. This is an inference open to the jury.

[34] Putting the case at its highest for the Crown, this brief time frame supports the inference that the sex was not consensual. During this short time, many things occurred: sexual contact between the accused and the deceased; the infliction of a violent beating; neck compression causing death; the gathering of combustible items to set three separate fires; the theft of the victim's bank card; and the attacker found and took the deceased's roommate's shirts. The short timeline allows for the inference that the violence overlapped with the sexual act, particularly in light of the deceased's injuries.

[35] Taken together, these facts support the reasonable inference that the sexual contact was not consensual. They elevate the Crown's allegation that the sexual act was non-consensual beyond speculation, and, if believed, could support an inference of guilt beyond a reasonable doubt. That other inferences may be available is of no moment since, at the preliminary inquiry stage, inferences are resolved in favour of the Crown.

[36] The reviewing judge substituted her own findings without resolving the inferences in favour of the Crown or taking its case at its highest. She referred to R. v. MacDonald, [2004] O.J. No 1756 (C.A.), to reject the proposition that a connection between sexual activity and a violent killing gives rise to a charge of first degree murder under s. 235(1)(b). However, in that case, there was no evidence of the anal intercourse that was the actus reus of the alleged sexual assault. The other sexual act that occurred in MacDonald was not alleged to have been non-consensual. Here, there is clear evidence of the sexual act in the form of the semen in the mouth of the deceased. Though the inference was available that the oral sex was consensual, there is evidence to support the competing inference that it was not. This distinguishes the case from MacDonald.

[37] The evidence taken as a whole can reasonably support the inference that the deceased did not consent to the sexual act.

Disposition

[38] I would allow the appeal and reinstate the preliminary inquiry judge's committal for trial on first degree murder.

Released: March 31, 2016

"M.L. Benotto J.A."

"I agree G.R. Strathy C.J.O."

"I agree P. Lauwers J.A."