COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackson, 2016 ONCA 736

DATE: 20161007

DOCKET: C61836 and C62227

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

C61836

Her Majesty the Queen

Appellant

and

Andrew Jackson

Respondent

AND BETWEEN

C62227

Her Majesty the Queen

Respondent

and

Andrew Jackson

Appellant

Alex Alvaro, for the appellant Crown in C61836

Jeff Carolin and Candice Suter, for the respondent, Jackson in C61836

Apple Newton-Smith and Mark Halfyard for the intervener, Criminal Lawyers’ Association (Ontario)

Jeff Carolin and Candice Suter, for the appellant, Jackson in C62227

Alex Alvaro, for the respondent Crown in C62227

Heard: September 19, 2016

On appeal from the order of Justice Anne M. Molloy of the Superior Court of Justice, dated February 11, 2016, granting certiorari and quashing the order of Justice Rebecca Rutherford of the Ontario Court of Justice, dated March 12, 2015, and directing a committal for trial on the charge of manslaughter, with reasons reported at 2016 ONSC 1069.

Doherty J.A.:

I

[1] Andrew Jackson was committed for trial on a charge of second degree murder. On a certiorari motion, a Superior Court judge quashed the committal and substituted a committal for trial on the charge of manslaughter. The Crown appealed, contending that the Superior Court judge erred in quashing the committal on the second degree murder charge. Jackson appealed, alleging that the Superior Court judge erred in not discharging Jackson entirely.

[2] There were two live issues at the preliminary inquiry:

• Was Mr. Jackson the person who stabbed and killed Matthew Archibald? [the identity issue]

• If Mr. Jackson was the person who stabbed and killed Mr. Archibald, did he have the mens rea required for murder under s. 229(a) of the Criminal Code? [the intent issue]

[3] The preliminary inquiry judge held that the evidence proffered on both issues met the test for committal for trial and committed Mr. Jackson on the charge of second degree murder.

[4] The Superior Court judge deferred to the preliminary inquiry judge’s assessment of whether the evidence supported a finding against Mr. Jackson on the identity issue, but held that the inference of the mens rea for murder, as required under s. 229(a), could not reasonably be drawn from the evidence. Consequently, she quashed the committal on the charge of murder and substituted a committal for manslaughter.

[5] At the end of oral argument, the court indicated that the Crown’s appeal would be allowed and Mr. Jackson’s appeal dismissed, thereby restoring the committal on the charge of second degree murder. The court indicated that reasons would follow. These are those reasons.

II

the test for committal

[6] Fifteen years ago in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, McLachlin C.J. described the test to be applied by a preliminary inquiry judge in deciding whether to commit for trial pursuant to s. 548(1) as “well-settled”. A preliminary inquiry judge must decide whether a properly instructed jury, acting reasonably, could convict on the evidence adduced at the preliminary inquiry. If the evidence relied on by the Crown is circumstantial, the preliminary inquiry judge must weigh the evidence in a limited sense to determine whether the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence: Arcuri, at paras. 1, 29-30.

[7] In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769, at para. 31 (Ont. S.C.); and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.

[8] If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.

[9] R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, released the same day as Arcuri and also authored by the Chief Justice, demonstrates the proper analysis in cases where the evidence relied on by the Crown to commit is circumstantial and admits of inferences consistent with and inconsistent with guilt. In Russell, the accused was charged with constructive first degree murder. The Crown alleged that he murdered a man named Whittaker in the course of the unlawful confinement of another person (Seccombe). The facts raised the question whether the constructive first degree murder provision applied if the person murdered was not the person confined. The court held that the section could apply as long as there was a close connection temporally and causally between the confinement and the murder.

[10] The court then turned to whether the evidence led at the preliminary inquiry was sufficient to justify the committal on the constructive first degree murder charge. McLachlin C.J. said, at para. 48:

With this in mind, I cannot conclude that the committal of the accused was unwarranted. While the jury would be entitled to find that the appellant’s intention in confronting Whittaker was entirely independent of the forcible confinement of Seccombe – indeed, the apparent animosity between the appellant and Whittaker might support such a conclusion – the jury would equally be entitled to conclude that the appellant murdered Whittaker to facilitate his forcible confinement of Seccombe, or that the appellant forcibly confined Seccombe to facilitate his murder of Whittaker. [Emphasis added.]

[11] The Chief Justice makes it clear that evidence at the preliminary inquiry that is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, requires that the accused be committed for trial. The Superior Court judge in this case indicated otherwise at various points in her analysis (see e.g. paras. 20, 25, 26). The Superior Court judge confused cases in which the circumstantial evidence read at its strongest for the Crown could not reasonably support an inference of guilt (see e.g. United States of America v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.)), with cases in which the evidence could reasonably support inferences necessary to a finding of guilt or inferences inconsistent with guilt: (see e.g. Russell). The preliminary inquiry judge must discharge if the evidence falls into the first category of cases, but must commit for trial if the evidence falls into the second category.

[12] The distinction between evidence that cannot reasonably support the inferences necessary to establish the Crown’s case and evidence that can support competing inferences including an inference of guilt can be hopefully made clear with two examples using facts similar to this case. In the first case, assume that the Crown’s evidence consists of testimony that “A” and “B” were in the room with the deceased immediately before he was killed. No one else was in the room, and there was no evidence of any joint enterprise between “A” and “B”. On this evidence nothing points to “A” as opposed to “B” as the killer. It would be unreasonable for a jury to infer from “A’s” presence in the room (the primary fact) the further fact that he was the killer. “A” must be discharged at the preliminary inquiry.

[13] In the second example, assume again that “A” and “B” were the only people in the room with the deceased immediately before he was killed and that there is no evidence of joint enterprise. There was evidence that as the police arrived moments later, “A” was seen leaving the room with the weapon used to kill “X” secreted upon his person. There was also evidence that “B” had been involved in a loud verbal altercation with “X” immediately before the killing.

[14] On this evidence, one could reasonably infer from “A’s” presence in the room and his departure from the room immediately after with the weapon used to kill “X” in his possession, that “A” had killed “X”. One might also infer based on “B’s” presence in the room and the prior altercation with “X”, that “B” had killed “X“. On the evidence described in the second scenario the evidence supports two reasonable conclusions, one of which is that “A” killed “X”. A preliminary inquiry judge would be required to commit “A” for trial.

[15] Given the nature of the decision the preliminary inquiry judge must make when deciding whether to commit, I see no value in reference to Hodge’s Case (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227. The often cited passage from Hodge’s Case provides language that may be used in a jury instruction to assist a jury in applying the reasonable doubt standard to circumstantial evidence, and to alert the jury to the dangers of leaping too quickly to conclusions based on circumstantial evidence: see R. v. Villaroman, 2016 SCC 33. Neither concern is germane to the function of the preliminary inquiry judge at the end of the preliminary inquiry. Inserting the jury instruction language from Hodge’s Case into the analysis required to determine whether an accused should be committed for trial is confusing and potentially misleading.

III

the test on a motion to quash

[16] On a motion to quash a committal for trial, the reviewing judge has a very narrow responsibility. She is charged only with the responsibility of determining whether the preliminary inquiry judge acted within her jurisdiction in committing for trial. The reviewing judge does not make her own assessment of whether the evidence could justify a committal for trial, but asks only whether there was any evidence at all upon which the preliminary inquiry judge could form her opinion that the test for committal had been met: see R. v. Manickavasagar (2004), 60 W.C.B. (2d) 508 (Ont. C.A.); and R. v. Tuske, 3 W.C.B. 4 (Ont. C.A.).

[17] Turning first to the identity issue, there was evidence that Mr. Jackson was involved in a physical altercation with Mr. Archibald immediately before Mr. Archibald’s death. There was also evidence that Mr. Jackson was arrested leaving the apartment with a knife up his sleeve. Mr. Jackson’s conduct suggested he was attempting to flee the scene with the weapon that had been used to kill Mr. Archibald before the police arrived. Finally, there was evidence that Mr. Jackson instructed Ms. Oakes, the only other person in the room when Mr. Archibald died, to lie to the police and that he told a similar lie to the police himself.

[18] The body of evidence summarized above constitutes some evidence upon which a preliminary inquiry judge could be satisfied that a reasonable jury, properly instructed, could conclude beyond a reasonable doubt that Mr. Jackson stabbed and killed Mr. Archibald. For the reasons outlined above, the preliminary inquiry judge was not tasked with weighing whether there were other reasonable inferences inconsistent with a finding that Mr. Jackson stabbed Mr. Archibald.

[19] Turning to the issue of intent, which is of course approached on the basis that there was evidence that Mr. Jackson stabbed Mr. Archibald, the Superior Court judge held that the post-offence conduct relied on by the preliminary inquiry judge as evidence of intent was irrelevant to Mr. Jackson’s state of mind (para. 45). She then went on to make her own assessment of whether the evidence which she viewed as properly admissible on that issue warranted the committal of Mr. Jackson (para. 49).

[20] The Superior Court judge erred in both respects. First, evidence of post-offence conduct may have relevance to the state of mind of the perpetrator. The inferences that may be available from post-offence conduct depend upon the specific conduct and the rest of the evidence. There is no per se rule declaring post-offence conduct irrelevant to the perpetrator’s state of mind: see R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 20-21. The preliminary inquiry judge saw the post-offence conduct as capable of supporting inferences relevant to Mr. Jackson’s state of mind. That determination, whether right or wrong, was within the jurisdiction of the preliminary inquiry judge.

[21] Furthermore, even if the Superior Court judge was correct in regarding the post-offence conduct as incapable of supporting any inference as to Mr. Jackson’s state of mind, she was wrong in holding that the preliminary inquiry judge’s reliance on that evidence allowed her to effectively step into the shoes of the preliminary inquiry judge and decide whether, on a proper view of the evidence, Mr. Jackson should have been committed for trial. Regardless of any error the preliminary inquiry judge made within the exercise of her discretion, the question for the Superior Court judge remained the same – was there any evidence to support the preliminary inquiry judge’s determination that the test for committal for trial had been met.

[22] In any event, even if one ignores entirely the post-offence conduct, there was evidence upon which the preliminary inquiry judge could conclude that a jury, acting reasonably, could find that when Mr. Jackson stabbed Mr. Archibald through the heart, he intended to cause him bodily harm, knowing that the bodily harm was likely to cause Mr. Archibald’s death and was reckless as to whether death ensued: see Criminal Code s. 229(a).

[23] The Superior Court judge accepted that a stab through the heart could reasonably support an inference that the stabber intended to cause the victim bodily harm. She added, at para 49:

However, I fail to see any evidence whatsoever from which the jury could reasonably infer that Mr. Jackson’s intent went beyond that.

[24] I take the Superior Court judge to hold that no reasonable jury could infer that when Mr. Jackson stabbed Mr. Archibald in the heart intending to cause him bodily harm, he knew that the wound would probably kill Mr. Archibald. With due respect, the inference of knowledge was properly available. Juries have been told for centuries that they may infer that a person intends the natural consequences of his actions. The preliminary inquiry judge was entitled to take the same approach. In my view, the foreseeability of death as a natural consequence of Mr. Jackson’s actions supported the inference that he had the intent and foresight required for murder under s. 229(a): see R. v. Magno (2006), 2006 CanLII 21758 (ON CA), 210 C.C.C. (3d) 500, at paras. 18-19 (Ont. C.A.), leave to appeal refused, [2006] S.C.C.A. No. 407.

[25] More to the point on a certiorari application, the nature of the wound inflicted provided some evidence upon which a preliminary inquiry judge could conclude that a reasonable jury could find that Mr. Jackson had the state of mind for murder.

[26] In declining to commit for trial on second degree murder, the Superior Court judge envisioned other scenarios involving Mr. Jackson stabbing Mr. Archibald in the heart that would not warrant a conviction on second degree murder (para. 51). The question before her, however, was not whether other scenarios could be envisioned, but whether there was any evidence capable of supporting the preliminary inquiry judge’s conclusion that there was evidence upon which a jury could make a finding that Mr. Jackson had the necessary intent: see R. v. D.M., 2008 ONCA 69, 76 W.C.B. (2d) 338, at paras. 4-5. In my view, the Superior Court judge went beyond the scope of review contemplated on a certiorari motion and applied a test much closer to the ultimate question of whether the Crown had proved its case beyond a reasonable doubt. She erred in law in doing so.

IV

[27] As indicated at the end of oral argument, the Crown’s appeal is allowed, Mr. Jackson’s appeal is dismissed, and the committal for trial on the charge of second degree murder is restored.

Released: October 7, 2016 (“D.D.”)

“Doherty J.A.”

“I agree. S.E. Pepall J.A.”

“I agree. C.W. Hourigan J.A.”