R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54

Giacinto Arcuri Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Arcuri

Neutral citation: 2001 SCC 54.

File No.: 27797.

2001: April 19; 2001: September 14.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for ontario

Criminal law -- Preliminary inquiry -- Exculpatory evidence -- Whether preliminary inquiry judge required to weigh Crown’s evidence against exculpatory evidence called by accused.

The accused was charged with first degree murder. At the preliminary inquiry, the Crown’s case was entirely circumstantial and the accused called two witnesses whose testimony was arguably exculpatory. The preliminary inquiry judge rejected the accused’s contention that he must weigh the evidence and, after viewing the evidence as a whole, determined that the accused should be committed to trial for second degree murder. The accused’s certiorari application was dismissed and that decision was affirmed by the Court of Appeal. The issue before this Court was whether the preliminary inquiry judge, in determining whether the evidence was sufficient to commit the accused to trial, erred in refusing to weigh the Crown’s evidence against the allegedly exculpatory direct evidence adduced by the accused.

Held: The appeal should be dismissed.

The question to be asked by a preliminary inquiry judge under s. 548 of the Criminal Code is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The question that arises in this case is whether the preliminary inquiry judge’s task differs where the defence tenders exculpatory evidence. The task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as the only conclusion that needs to be reached is whether the evidence is true. However, where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. This task of limited weighing never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. In this case, before committing the accused to trial, the preliminary inquiry judge considered the evidence as a whole, surveying the circumstantial evidence presented by the Crown, as well as the allegedly exculpatory evidence tendered by the defence. There is no reason to believe that he arrived at the wrong result in committing the accused to trial.

Notwithstanding certain confusing language in Mezzo and Monteleone, nothing in this Court’s jurisprudence calls into question the continuing validity of the common law rule in Shephard.

Cases Cited

Applied: United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067; R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679; R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154; Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802; referred to: Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193; Curley v. United States, 160 F.2d 229 (1947); R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C-46, ss. 231(2), 535 [rep. & sub. c. 27 (1st Supp.), s. 96], 540(1)(a), 541(1) [rep. & sub. 1994, c. 44, s. 54], 548(1) [rep. & sub. c. 27 (1st Supp.) s. 101].

Authors Cited

Bloos, Marvin, and Michael Plaxton. “An Almost-Eulogy for the Preliminary Inquiry: ‘We Hardly Knew Ye’” (2000), 43 Crim. L.Q. 516.

Gillies, Peter. Law of Evidence in Australia, 2nd ed. Sydney: Legal Books, 1991.

McCormick, Charles Tilford. McCormick on Evidence, 5th ed. St. Paul, Minn.: West Publishing Co., 1999.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.

Tanovich, David M. “Upping the Ante in Directed Verdict Cases Where the Evidence is Circumstantial” (1998), 15 C.R. (5th) 21.

Tapper, Colin. Cross and Tapper on Evidence, 8th ed. London: Butterworths, 1995.

Taylor, James P. “The Test for Committal on the Preliminary Inquiry: USA v. Shephard -- A View of Sufficiency” (1977), 11 U.B.C. L. Rev. 213.

Watt, David. Watt’s Manual of Criminal Evidence. Scarborough, Ont.: Carswell, 1998.

APPEAL from a judgment of the Ontario Court of Appeal, [2000] O.J. No. 37 (QL), dismissing the accused’s appeal from a judgment of the Ontario Court (General Division), [1999] O.J. No. 758 (QL), upholding the accused’s committal for trial on a charge of second degree murder. Appeal dismissed.

Joseph L. Bloomenfeld, for the appellant.

Feroza Bhabha, for the respondent.

The judgment of the Court was delivered by

[1] The Chief Justice – This appeal raises the question of whether a preliminary inquiry judge may “weigh the evidence” in assessing whether it is sufficient to warrant committing an accused to trial. For the following reasons, I reaffirm the well-settled rule that a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict, and the corollary that the judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. As this Court has consistently held, this task does not require the preliminary judge to draw inferences from the facts or to assess credibility. Rather, the preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty.

I. Facts ^*

[2] The accused was charged with the first degree murder of Enio Mora, who was to all appearances his close friend. At the preliminary hearing, the Crown’s case against the accused was entirely circumstantial. The accused called two witnesses whose testimony was arguably exculpatory. The issue was whether the evidence was sufficient to warrant committing the accused to trial.

[3] The Crown’s evidence was to the following effect. Mora was found dead in the trunk of his Cadillac at about 4:00 p.m. on September 11th, 1996. The Cadillac was parked on the north side of Teston Road, between Pine Valley Drive and Weston Road in the City of Vaughan, which is located north of Toronto. Mora had been shot four times in the left temple at close range.

[4] The Crown presented no evidence purporting to establish when Mora’s Cadillac was first parked at the place it was discovered. However, one witness testified that the car was not parked there when he passed the area at 10:45 a.m. Several witnesses testified that they saw the car at around 2:00 p.m., or soon after.

[5] The principal evidence linking the accused to the crime consisted of a bundle of clothes discovered by the side of Pine Valley Drive by Onido Salerno, a local farmer. On September 11th, Salerno was working outside on his farm, which is on Pine Valley Drive just south of Teston Road. At about 2:00 p.m., Salerno saw a black or blue car, a Buick or Oldmobile with a chrome stripe along the side, stop on the road in front of him. The driver and a passenger got out and left something in the ditch by the side of the road. The two then got back in the car and drove off. After the car had driven off, Salerno went to see what the men had left in the ditch. He found a pair of beige pants, a shirt spotted with blood, a pair of shoes, and a full package of Freedent gum. Salerno later viewed photographs at the police station and identified the driver of the car he had seen to be someone other than the accused. The Crown maintained that the man Salerno had seen was the accused.

[6] The Crown presented evidence as to the whereabouts of the deceased and the accused on the morning of September 11th. Nick Nesci, a real estate broker and long-time acquaintance of the accused, stated that the accused had arrived at his office some time soon after 10:00 a.m. One of Nesci’s clients, Nicola Galiffe, had a 10:00 a.m. appointment with Nesci and was already in the office. Mora arrived at about 10:20 or 10:30 a.m, to follow up on an offer Nesci had made to get him a good price on an exercise treadmill. Nesci left his office at about 11:00 a.m. for an appointment. He left Galiffe, Mora, and the accused standing outside his office, “talking like old friends”. That was the last he saw of them that day, and the last he saw of Mora.

[7] Galiffe was not called as a witness but he submitted a signed statement to the police stating that he, Mora, and the accused went for coffee after leaving Nesci’s office.

[8] Some time on the morning of September 11th, Mora paged Giancarlo Serpe, an acquaintance, to ask him to meet for coffee at 11:30 a.m. The two apparently met for coffee on a daily basis. They met for about 20 minutes or half an hour. In examination-in-chief, Serpe stated that Mora left the donut shop at about 11:30. On cross-examination, he stated that it was about 12:00 noon. In any event it seems he is the last witness to have seen Mora alive.

[9] The accused cooperated with the police investigation. In the course of one interview, he stated that he had been in Mora’s car on September 10th. The police therefore asked him to provide “elimination prints”; he agreed. He also agreed to provide a buccal swab for D.N.A. testing.

[10] Forensic tests revealed that the D.N.A. profile taken from the collar of the shirt found by Onido Salerno matched that of the accused and that the blood on the shirt was Mora’s. The accused was arrested on December 3rd and charged with first degree murder. A packet of Freedent gum was found on his person. The shirt the accused was wearing at the time of his arrest was about the same size as the shirt that Onido Salerno had found. The pants were the same size. From the accused’s residence, the police seized, among other things, several packages of Freedent gum, many pairs of shoes, many pairs of pants, several rounds of .22 calibre bullets, a .22 calibre rifle, and a double-barreled shotgun. Many of the shoes and most of the pants were the same size as those that Onido Salerno had found on Pine Valley Drive. The laces on some pairs of shoes were tied in double knots, as had been the laces on the pair of shoes that Onido Salerno had found. According to an R.C.M.P. expert who examined several of the shoes, it was “highly probable” that the person who had worn the shoes that Onido Salerno had found was the same person who had worn the shoes found in the accused’s residence. The accused’s car was seized on December 4th. It was a blue, 1989, 4-door Buick Park Avenue, with a wide chrome strip along the bottom of the fenders and doors. Inside the car, the police found, among other things, Freedent gum and a pair of boots.

[11] The police theorized that Mora had been murdered at a farm located at 10367 Weston Road. The distance between the farm and the place Mora’s car was found could be traveled in slightly over a minute, driving at 65 kilometres per hour. The farm is owned by Nicola DiLorenzo, for whom the accused had worked “a long time ago”. DiLorenzo stated that he had never seen the accused at the farm. However, the accused’s son has done work for DiLorenzo. Soil samples taken from one of the barns matched soil found on Mora’s clothing and shoes as well as on the shoes found by Onido Salerno on Pine Valley Drive. The police also found feathers and feather fragments similar to those found with Mora’s body, on the boots found in the accused’s car, and on the shirt and pants found by Salerno. In a subsequent search, the police found four .22 calibre live rounds of ammunition, a .22 calibre shell case, and a .22 calibre ammunition container.

[12] The accused called witnesses whose testimony was arguably exculpatory. Michael Fiorillo, the owner of the real estate company with which Nesci is employed, testified that he saw Galiffe, Mora, and the accused leave his premises at about 11:00 a.m. He also stated that he saw Galiffe and the accused in the same parking lot between 1:30 and 2:00 p.m., but closer to 2:00 p.m. At that time, the accused was getting into his car. Galiffe was getting into his own car. Carmelo Suppo, a travel agent and long-time friend of the accused, testified that the accused had visited her on September 11th between about 2:00 p.m. and 2:30 p.m. No evidence was offered by the Crown or by the accused as to how long it would take to drive from the place the clothing was found on Pine Valley Drive to Mr. Fiorillo’s office or Ms. Suppo’s office. The accused suggested, however, that the testimony of Fiorillo and Suppo was exculpatory as it suggested lack of opportunity.

II. Judgments

1. Ontario Court (Provincial Division)

[13] Before Lampkin Prov. J., the preliminary inquiry judge in the Ontario Court (Provincial Division), the accused contended that a “novel issue raised by the unique facts of this case is the extent to which a preliminary inquiry justice can consider exculpatory evidence in determining when circumstantial evidence is sufficient to justify an accused’s committal for trial”: [1998] O.J. No. 3974 (QL), at para. 69. It was the accused’s view that a preliminary inquiry judge is required to consider exculpatory evidence. The Crown conceded that a preliminary inquiry judge must evaluate all of the evidence but argued that this did not mean that the judge must weigh evidence to arrive at a “net effect”. The Crown’s position was that the task of weighing circumstantial inculpatory evidence against direct exculpatory evidence is a task for the jury, not the preliminary inquiry judge.

[14] Lampkin Prov. J. began by citing this Court’s decision in United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080, which held that a preliminary inquiry justice is “required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction”. He then stated that the application of the Shephard test to the facts of particular cases “has brought sharp disagreement even at the highest level”: para. 75. In support of this proposition, he cited this Court’s decision in R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, in which both the majority and the dissent affirmed Shephard but the latter went on to state that “whether the evidence is direct or circumstantial, the judge, in assessing the sufficiency of the evidence must, by definition, weigh it”: Charemski, supra, at para. 23 (per McLachlin J., dissenting). Lampkin Prov. J. reasoned that this statement reflected a disagreement with the majority position and the traditional common law rule. In his view, the proposition that a preliminary judge must weigh the evidence “comes awfully close to saying that if the evidence presented by the Crown is so weak, the case ought to be withdrawn from the jury”: para. 85. He therefore rejected the accused’s contention that the judge must weigh the evidence, holding at para. 96 that

if “there is admissible evidence which could, if it were believed, result in a conviction”, . . . there must be a committal notwithstanding the presence of exculpatory evidence. Failure to commit would mean that the justice made findings of fact and drew inferences therefrom which are forbidden at the preliminary hearing stage. [Emphasis added.]

[15] Despite that ruling, Lampkin Prov. J. carefully surveyed not only the evidence that the Crown had led, but also the evidence and arguments adduced by the accused. While he ultimately determined that the accused should be committed to trial for second degree murder, he did so only after “view[ing] the evidence as a whole” (para. 90). Lampkin Prov. J. rejected the Crown’s contention that the accused could be committed to trial for first degree murder under s. 231(2) of the Criminal Code, R.S.C. 1985, c. C-46, finding that the evidence of planning and deliberation was insufficient.

2. Ontario Court (General Division)

[16] On certiorari to the Ontario Court (General Division), the accused pursued the argument that the preliminary inquiry judge should have weighed the evidence. Tobias J. dismissed the application. In his view, “the reasons for decision of the preliminary hearing judge constituted a careful review of the evidence and a thorough determination of the sufficiency of the evidence”: [1999] O.J. 758 (QL), at para. 7. He rejected the accused’s argument that Lampkin Prov. J. had misapplied Charemski, supra. “Considering his reasons as a whole”, he wrote, “there is simply no indication that the judge applied an incorrect test to the facts adduced at the preliminary hearing. He followed the test for committal set out by the majority of the Court and by [the dissent] in Charemski”: para. 10.

3. Court of Appeal of Ontario

[17] The Court of Appeal for Ontario dismissed the accused’s appeal by endorsement: [2000] O.J. No. 37 (QL). It wrote:

The committing judge expressly instructed himself as to his function relying upon Monteleone v. The Queen (1987), 1987 CanLII 16 (SCC), 35 C.C.C. (3d) 193 (S.C.C.) and United States v. Shephard (1976), 1976 CanLII 8 (SCC), 30 C.C.C. 424 (S.C.C.). These cases are still good law. The dissenting reasons of McLachlin J. in R. v. Charemski (1998), 1998 CanLII 819 (SCC), 123 C.C.C. (3d) 225 (S.C.C.) at 237 specifically state that the trial judge is not to assess the credibility of witnesses.

The Court of Appeal concluded that the Lampkin Prov. J. had made no jurisdictional error and that Tobias J. was correct in denying the appellant the remedy of certiorari.

III. Legislation

[18] Criminal Code, R.S.C. 1985, c. C‑46

535. Where an accused who is charged with an indictable offence is before a justice, the justice shall, in accordance with this Part [Procedure on Preliminary Inquiry], inquire into that charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

536. (1) Where an accused is before a justice holding a preliminary inquiry, the justice shall

(a) take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross-examine them; . . .

541. (1) When the evidence of the witnesses called on the part of the prosecution [at the preliminary inquiry] has been taken down . . . the justice shall, subject to this section, hear the witnesses called by the accused.

542. (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.

IV. Issue

[19] Did the preliminary inquiry judge, in determining whether the evidence was sufficient to commit the accused to trial, err in refusing to weigh the Crown’s evidence against exculpatory evidence adduced by the defence?

V. Analysis

[20] Procedure relating to preliminary inquiries is set out in Part XVIII of the Criminal Code. Section 535 provides that, when an accused is charged with an indictable offence, a justice shall conduct a preliminary inquiry to assess the evidentiary basis for the charge. Section 540 requires the preliminary inquiry justice to hear the evidence of the Crown. Section 541 requires the preliminary inquiry justice to hear the witnesses of the accused. Section 548(1) states that, after all the evidence has been taken, the justice shall commit the accused to trial “if in his opinion there is sufficient evidence”, and discharge the accused “if in his opinion on the whole of the evidence no sufficient case is made out”.

[21] The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: Shephard, supra, at p. 1080; see also R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, at p. 160. Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080.

[22] The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge’s task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt’s Manual of Criminal Evidence (1998), at §8.0 (“[d]irect evidence is evidence which, if believed, resolves a matter in issue”); McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at §2.74 (direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial”). It is for the jury to say whether and how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.

[23] The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks 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.

[24] The principles described above are well settled. In Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193 (H.L.), at p. 197, Lord Cairns wrote:

The Judge has a certain duty to discharge, and the jurors have another and a different duty. The Judge has to say whether any facts have been established by evidence from which [the matter in issue] may be reasonably inferred; the jurors have to say whether, from those facts . . . [the matter in issue] ought to be inferred. [Emphasis omitted.]

We reaffirmed the traditional common law rule in Shephard, supra. As I noted in Charemski, supra, the same rule applies in England, in Australia, and in the United States: see Cross and Tapper on Evidence (8th ed. 1995), at pp. 190-92; P. Gillies, Law of Evidence in Australia (2nd ed. 1991), at pp. 206-8; Curley v. United States, 160 F.2d 229 (D.C. Cir. 1947), at p. 232 (the judge “must determine whether upon the evidence . . . a reasonable mind might fairly conclude guilt beyond a reasonable doubt”).

[25] Notwithstanding certain confusing language in Mezzo, supra, and Monteleone, supra, nothing in this Court’s jurisprudence calls into question the continuing validity of the common law rule: see M. Bloos and M. Plaxton, “An Almost-Eulogy for the Preliminary Inquiry: ‘We Hardly Knew Ye’” (2000), 43 Crim. L.Q. 516, at p. 526. In Mezzo, the issue was whether the Crown had proffered sufficient evidence as to identity. McIntyre J., writing for the majority, stated that a trial judge can direct an acquittal only if there is “no evidence” as to an essential element of the offence: Mezzo, at pp. 840-43. He also stated that the judge has no authority to “weigh and consider the quality of the evidence and to remove it from the jury’s consideration”: Mezzo, at p. 842. Those statements, taken alone, might be understood to suggest that a preliminary inquiry judge must commit the accused to trial even if the Crown’s evidence would not reasonably support an inference of guilt. However, as the dissent in Charemski, supra, discusses (at para. 27), the remainder of McIntyre J.’s reasons make clear that by “no evidence” McIntyre J. meant “no evidence capable of supporting a conviction”, and by “weighing” McIntyre J. was referring to the ultimate determination of guilt (a matter for the jury), as distinguished from the determination of whether the evidence can reasonably support an inference of guilt (a matter for the preliminary inquiry judge). His concern was to reject the argument that the judge must determine whether guilt is the only reasonable inference. His reasons cannot be read to call into question the traditional rule, namely, that the judge must determine whether the evidence can reasonably support an inference of guilt.

[26] In Monteleone, supra, the accused was charged with setting fire to his own clothing store. The evidence was entirely circumstantial. The question was whether the trial judge had erred in directing an acquittal on the grounds that the “cumulative effect [of the evidence] gives rise to suspicion only, and cannot justify the drawing of an inference of guilt”: Monteleone, at p. 159. In ordering a new trial, McIntyre J. wrote that “[i]t is not the function of the trial judge to weigh the evidence, [or] . . . to draw inferences of fact from the evidence before him”: Monteleone, at p. 161. Again, however, the remainder of the reasons make clear that by “weighing” McIntyre J. was referring to the final drawing of inferences from the facts (which task, again, is within the exclusive province of the jury), not to the task of assessing whether guilt could reasonably be inferred. Indeed, the reasons explicitly reaffirm the common law rule that the judge must determine whether “there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably, would justify a conviction”: Monteleone, at p. 161.

[27] Contrary to the appellant’s contention, Charemski, supra, did not evidence disagreement in this Court as to the proper approach. The appellant in Charemski had been charged with the murder of his wife. The trial judge directed a verdict of acquittal, principally because the forensic evidence did not affirmatively suggest that the deceased had been murdered. The question in this Court was whether the Court of Appeal erred in setting aside the trial judge’s directed verdict of acquittal. There was no disagreement between the majority and the dissent as to the test that the preliminary inquiry justice must apply. On the contrary, both the majority and the dissent clearly reaffirmed Shephard, supra, and its progeny: see Charemski, at paras. 2 and 4 (per Bastarache J.); at paras. 19 and 30 (per McLachlin J., dissenting). Any disagreement concerned not the test for sufficiency but the question of whether sufficient evidence was led in that case. The majority conceded that forensic evidence had not affirmatively indicated that the deceased had been murdered, but reasoned that a properly instructed jury could reasonably infer guilt from the other evidence that the Crown had led. The dissent argued that, as it had not been established that the deceased had been murdered, it was meaningless to discuss identity and causation, two of the other essential elements of the offence. The dissent also argued that the accused’s presence in the deceased’s apartment could not reasonably be inferred from the accused’s conceded presence in the lobby. The dissenting justices concluded that the circumstantial evidence could not reasonably support an inference of guilt.

[28] In Charemski, supra, the dissenting justices discussed at some length the limited nature of the weighing that a preliminary inquiry justice must perform, reaffirming the “time-hallowed and universally accepted” rule that the judge “must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict, with the implied correlative that the trial judge must weigh the evidence in the limited sense of determining whether it is capable of supporting essential inferences the Crown seeks to have the jury draw”: Charemski, at para. 26. However, this discussion did not part ways with the reasoning of the majority. Indeed, Bastarache J.’s majority judgment, arrived at only after a thorough survey of the evidence, was founded on exactly the kind of limited weighing endorsed in the dissent: see D. M. Tanovich, “Upping the Ante in Directed Verdict Cases Where the Evidence is Circumstantial” (1998), 15 C.R. (5th) 21, at pp. 26-27.

[29] The question that arises in the case at bar is whether the preliminary inquiry judge’s task differs where the defence tenders exculpatory evidence, as is its prerogative under s. 541. In my view, the task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true. However, where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

[30] In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[31] The traditional formulation of the common law rule perhaps suggests a different approach. Traditionally, it is said that a preliminary inquiry judge must commit the accused to trial if there is any evidence upon which a properly instructed jury, acting reasonably, could find guilt: see, e.g., Shephard, supra, at p. 1080. That formulation of the rule could be misunderstood to mean that, if the Crown presents evidence that would on its own be sufficient to support a verdict of guilty, the preliminary inquiry judge need not consider the exculpatory evidence proffered by the defence: see J. P. Taylor, “The Test for Committal on the Preliminary Inquiry: U.S.A. v. Shephard -- A View of Sufficency” (1977), 11 U.B.C. L. Rev. 213, at p. 230 (“carried to its logical extreme, the decision in Shephard, unless it is to be limited to cases in which the defense does not offer evidence, would not allow the justice to weigh the evidence of the Crown when compared with the evidence given by the defense”).

[32] This result would obviously be inconsistent with the mandate of the preliminary inquiry justice as is expressed in s. 548(1), which requires the preliminary inquiry justice to consider “the whole of the evidence”. Further, it would undermine one of the central purposes of the preliminary inquiry, which is to ensure that the accused is not committed to trial unnecessarily: see R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 20. Thus the traditional formulation of the common law rule should not be understood to foreclose consideration of defence evidence. It remains true that in certain cases (such as, for example, where the Crown adduces direct evidence as to every element of the offence) the case will necessarily go to the jury regardless of the exculpatory evidence proffered by the defence. This is the inevitable consequence of the principle that credibility determinations are within the exclusive province of the jury. This result is not inconsistent, however, with the preliminary inquiry judge’s mandate under s. 548(1). Whatever the evidence of the Crown and defence, the judge must consider “the whole of the evidence”, in the sense that she must consider whether the evidence, if believed, could reasonably support a finding of guilt. The question is the same whether the evidence is direct or circumstantial. The only difference is that, where the evidence is direct, the evidence will by definition support a finding of guilt, the only remaining question being whether the evidence is to be believed, which is a question for the jury.

[33] With those principles in mind, I turn, then, to the question of whether Lampkin Prov. J. properly interpreted and applied the law in this case. I have reservations about two aspects of Lampkin Prov. J.’s reasons. The first is with Lampkin Prov. J.’s characterization of the dissent in Charemski, supra, at para. 85 as “com[ing] awfully close to saying that if the evidence presented by the Crown is so weak, the case ought to be withdrawn from the jury”. Under the traditional common law rule, which I affirmed in Charemski, the preliminary inquiry justice’s role is limited to determining whether a reasonable jury properly instructed could return a verdict of guilty. If the evidence could result in a conviction, the accused must be committed. Otherwise, he must be discharged. The preliminary inquiry justice does not herself draw inferences from the evidence, and she does not assess the credibility of witnesses. Thus it overstates the case to say that a preliminary inquiry justice is entitled to discharge an accused simply on the grounds that the Crown’s evidence is “weak”.

[34] My second reservation is with Lampkin Prov. J.’s statement at para. 96 that “if ‘there is admissible evidence which could, if it were believed, result in a conviction’, . . . there must be a committal notwithstanding the presence of exculpatory evidence”. Again, the statement is too broad. If the Crown’s case is direct, it is true that the matter is always one for the jury; as by definition there is no inferential gap between direct evidence and the fact to be proved, there is no inference whose reasonableness the preliminary inquiry justice must assess. If, however, the Crown relies on circumstantial evidence, then the preliminary inquiry justice must engage in the limited weighing of the whole of the evidence (i.e. including the defence evidence) to assess whether a reasonable jury properly instructed could return a finding of guilt.

[35] Notwithstanding those two reservations, I am not persuaded that Lampkin Prov. J. reached the wrong result. Before committing the appellant to trial, the preliminary inquiry justice thoroughly surveyed the circumstantial evidence that had been presented by the Crown – principally the sighting of a car similar to the appellant’s on Pine Valley Drive just after 2:00 p.m., the sighting of a man similar in appearance to the accused exiting the car and leaving clothes in the ditch, the D.N.A. evidence linking the accused to the shirt left in the ditch, the foot-imprint evidence linking the accused to the shoes left in the ditch, the evidence that blood on the shirt was Mora’s, and the evidence that soil on the shoes matched soil found on Mora’s body and at the presumed murder site. Lampkin Prov. J. also surveyed the evidence proffered by the defence. Indeed, he identified at para. 89 eleven arguments that favoured the accused, including the “absolute and complete absence of any evidence of motive or possibility of gain”, and the absence of evidence of animus. Only after considering “the evidence as a whole” did Lampkin Prov. J. commit the appellant to trial.

[36] As to the appellant’s argument that Lampkin Prov. J. did not place sufficient weight on the absence of evidence of opportunity, I note that there was no independent evidence as to the accused’s whereabouts between the hours of about 11:30 a.m. and 2:00 p.m. The evidence of the accused’s whereabouts before and after those times came from Michael Fiorillo and Carmelo Suppo. This evidence was of course testimonial, and its credibility was therefore a matter for the jury.

VI. Conclusion

[37] For the foregoing reasons, I conclude that the appeal should be dismissed.

Appeal dismissed.

Solicitor for the appellant: Joseph L. Bloomenfeld, Toronto.

Solicitor for the respondent: The Ministry of the Attorney General, Toronto.

^*Note: There is an order banning the publication of the evidence taken at the preliminary inquiry in this case pursuant to s. 539 of the Criminal Code, R.S.C. 1985, c. C-46.