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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (c) he or she is discharged; or (d) if he or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(4) [Repealed, 2005, c. 32, s. 18(2).]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

Court of Appeal for Ontario Date: 20220113 Docket: C69549 & C69555

van Rensburg, Paciocco, and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Samir Adem and Salman Ahmed Appellants

Counsel: R. Craig Bottomley and Andrea VanderHeyden, for the appellant Samir Adem Ariel Herscovitch, for the appellant Salman Ahmed Gavin MacDonald, for the respondent

Heard: January 10, 2022 by video conference

On appeal from: the order of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated June 3, 2021 granting certiorari setting aside the order of Justice Michael Callaghan of the Ontario Court of Justice, dated November 27, 2020.

Reasons for Decision

[1] A preliminary inquiry judge committed Samir Adem and Salman Ahmed to trial on charges of second degree murder, contrary to s. 231(7) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown had sought their committal on charges of first degree murder, pursuant to the constructive first degree murder provision in s. 231(5)(e) of the Criminal Code, on the theory that they murdered the victim while committing the offence of unlawful confinement against him, contrary to s. 279 of the Criminal Code. The preliminary inquiry judge declined to commit on first degree murder, concluding that although the evidence established a prima facie case against Mr. Adem and Mr. Ahmed for the offence of murder, he was “unable to find a reasonable inference [that the victim] was forcibly confined”. In coming to this conclusion, he found that there was “an evidentiary gap which leaves the inference unsupportable”. He therefore concluded that the Crown had not led “sufficient evidence upon which a properly instructed jury could reasonably infer that Samir Adem and Salman Ahmed are guilty of the first degree murder of [the victim] by operation of s. 231(5)(e)”.

[2] The Crown brought a successful application for judicial review in which the reviewing judge found that the preliminary inquiry judge committed each of the three forms of jurisdictional error identified by Major J. in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 25, namely, (1) he misunderstood the elements of the offence, (2) he preferred an inference favourable to the accused over an inference favourable to the Crown, and (3) he failed to consider the whole of the evidence. The reviewing judge quashed the preliminary inquiry judge’s order to discharge the first degree murder charge and directed the preliminary inquiry judge to commit Mr. Adem and Mr. Ahmed on that charge.

[3] After oral argument, we allowed Mr. Adem and Mr. Ahmed’s appeal from the reviewing judge’s decision, with reasons to follow. These are our reasons for concluding that the reviewing judge erred in finding that the preliminary inquiry judge committed jurisdictional error. In our view, the reviewing judge erroneously substituted his own view of the evidence for that of the preliminary inquiry judge, which he was not entitled to do, after incorrectly identifying jurisdictional errors in the preliminary inquiry judge’s decision.

[4] In providing these reasons we will be circumspect in referring to the specific evidence, as it is unnecessary to recount it to explain our decision, and we want to avoid undermining the publication ban that is in force relating to the evidence provided during the preliminary inquiry. Suffice it to say that the Crown identified preliminary inquiry evidence before us that was arguably capable of yielding a reasonable conclusion that the victim was subject to a separate and distinct unlawful confinement at the time he was shot to death. However, even if the preliminary inquiry judge erred in finding that no such evidence existed, this was not a jurisdictional error, but instead, an error committed within his jurisdiction. As Major J. reaffirmed in R. v. DesChamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23:

[I]t is not a jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b): see Arcuri, supra, at paras. 21-23; Russell, supra, at para. 26.

[5] Although the reviewing judge quoted from this passage from DesChamplain and correctly expressed the limitations of his own jurisdiction to interfere in the preliminary inquiry judge’s decision, as indicated, he went on to err when identifying jurisdictional errors.

[6] First, his conclusion that the preliminary inquiry judge misunderstood the elements of the offence of unlawful confinement, thereby failing to evaluate the Crown’s evidence against the correct position in law, cannot stand. In the course of his decision, the preliminary inquiry judge correctly identified the elements of the offence. In finding that the preliminary inquiry judge nonetheless misunderstood those elements, the reviewing judge focused on a passage in which the preliminary inquiry judge listed evidence that was not available on the record. When that passage is read in context it is evident that the preliminary inquiry judge was not misidentifying missing elements of the offence, but instead illustrating the kind of evidence that could have filled the evidentiary gap he found relating to the elements he had correctly identified.

[7] Second, the reviewing judge’s conclusion that the preliminary inquiry judge ignored a reasonable inference favourable to the Crown mischaracterizes his decision. The preliminary inquiry judge refused to commit Mr. Adem and Mr. Ahmed to trial on first degree murder based on his conclusion that there was no evidence from which an inference of unlawful confinement could be drawn, not because he preferred a competing inference that favoured the defence.

[8] Moreover, the reviewing judge based his finding that the preliminary inquiry judge erroneously preferred an inference favourable to the defence to an inference favourable to the Crown on his own conclusion that there was evidence that supported an inference of unlawful confinement. If such reasoning is correct, a jurisdictional error would occur in any case where the reviewing judge identifies an inference that would enable committal that the preliminary inquiry judge failed to identify. Such an approach would defeat the distinction between jurisdictional errors and those ordinary errors that occur where the preliminary inquiry judge mistakenly concludes that there is insufficient evidence for committal. Put simply, in order to commit jurisdictional error based on drawing inferences in favour of the defence over those in favour of the Crown, a preliminary inquiry judge must engage in weighing competing inferences to determine which inference is more compelling. The preliminary inquiry judge did not do so in this case.

[9] Third, the reviewing judge’s conclusion that the preliminary inquiry judge failed to consider the whole of the evidence is predicated on the failure by the preliminary inquiry judge to refer expressly when describing the gap in the evidence to evidence that the reviewing judge believed could fill that gap. However, the preliminary inquiry judge furnished a comprehensive articulation of his duty to consider the whole of the evidence. The preliminary inquiry judge also referred on more than one occasion in the course of his decision to the evidence that the reviewing judge erroneously concluded that he failed to consider. When the whole of the preliminary inquiry judge’s decision is examined, it is evident that he did not mention this evidence when describing the gap in the Crown’s case for committal on the charge of first degree murder because he did not find that this evidence supported an inference of unlawful confinement. If this conclusion by the preliminary inquiry judge was an error, it was the very form of non-jurisdictional error that the reviewing judge had earlier conceded he could not interfere with, namely, a finding that the Crown’s evidence was insufficient.

[10] For these reasons, we allowed the appeal, quashed the decision of the review judge, and reinstated the committal for trial on second degree murder of both appellants.

Signatures:

“K. van Rensburg J.A.” “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.”