ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7320-12

DATE: 20121022

B E T W E E N:

HER MAJESTY THE QUEEN

N. Komsa and D. Peterson,
Counsel for the Respondent

Respondent

• and -

JAMIE ALLAN OBEN

Vanessa V. Christie,
Counsel for the Applicant

Applicant

HEARD: October 11, 2012

REASONS FOR DECISION

ellies, J.

[ 1 ] Jamie Allan Oben seeks to quash the order of the preliminary inquiry justice requiring him to stand trial on a charge of second degree murder. He asks to be discharged. In the alternative, he seeks to be committed on a charge of manslaughter, instead. He argues that the preliminary inquiry justice committed a jurisdictional error by failing to consider all of the evidence, including his own exculpatory statement to the police about the events leading up to the death of the victim, Mr. Oben’s 17-day old son.

[ 2 ] It is my view that the preliminary inquiry justice did precisely what she is required to do when faced with contradictory direct and circumstantial evidence concerning one or more elements of an offence. She considered what reasonable inferences were available on all of the evidence and whether, if the circumstantial evidence was accepted over the direct evidence, it could lead to a finding of guilt. Therefore, she committed no jurisdictional error in committing on the offence charged.

BACKGROUND

[ 3 ] Liam Oben was born on July 28, 2010. He died on August 14, 2010, after being left alone in the care of his father. On that date, Liam’s mother, Joanne Fox, left the family home at about 12:30 p.m. to run a few errands. She left Liam wrapped in a receiving blanket, lying on a baby monitor in his crib. She was gone for about 30 to 35 minutes. When she returned, Liam was again in his crib and Mr. Oben was patting Liam’s bum and rubbing his back. Mr. Oben expressed some concern about Liam, who began to look pale. Liam’s ears looked purple. Just after Ms. Fox picked Liam up, he went limp.

[ 4 ] Mr. Oben called 9-1-1 and, while the parents awaited the arrival of the paramedics, they were instructed on how to administer CPR. Although Liam was revived and was stabilized at the hospital, his condition deteriorated and he was pronounced dead at 11:37 p.m. that night.

[ 5 ] After Liam was injured and following his death, Mr. Oben was questioned on a number of occasions, both by the police and by medical personnel. On those occasions, he either said nothing about Liam banging his head or denied it altogether. On January 22, 2011 Mr. Oben was arrested. In the second of two interviews conducted on that date (the "last statement"), Mr. Oben told the police for the first time that he had accidentally dropped Liam while attempting to bathe him. According to the last statement, Liam fell from Mr. Oben's arms, first striking the side, and then the bottom, of the bathtub.

[ 6 ] A preliminary inquiry began in February, 2012 and lasted 11 days. During the course of the hearing, the court heard from Ms. Fox, various police officers, and from a number of medical experts. Not surprisingly, the Crown’s case was entirely circumstantial. The evidence established that Liam was a healthy child when Ms. Fox left the home on August 14. It also established that, while she was gone, Liam suffered a number of very serious injuries, including six skull fractures, subdural and subarachnoid bleeding, and subcortical haemorrhaging. The evidence also established that Liam died of the head injuries he sustained.

[ 7 ] The only direct evidence as to how those injuries occurred was the last statement of Mr. Oben. This statement was not the only exculpatory evidence introduced during the preliminary inquiry, however. In addition, the defence introduced other exculpatory evidence through witnesses called on behalf of the Crown. This included evidence that Mr. Oben was excited about the prospect of Liam’s birth, that he took steps to prepare for Liam’s arrival, and that he was involved in the day-to-day care of his son. Photographs and videos were introduced, showing Mr. Oben caring for and cuddling with Liam. There was also evidence that, after Liam was injured while being handled by Mr. Oben on a previous occasion, Mr. Oben wanted to take him to the hospital and facilitated Liam’s attendance at a scheduled appointment with the doctor the next day.

[ 8 ] As well, three of the medical experts called on behalf of the Crown with respect to the extent and the effect of the injuries sustained by Liam testified that, although unlikely, the possibility of death resulting from such a fall could not be excluded.

[ 9 ] In reasons released on June 21, 2012, the preliminary inquiry justice committed Mr. Oben to stand trial as charged. The reasons span 27 pages. The preliminary inquiry justice began with a careful and detailed recitation of the evidence that had been called before her. No issue is taken with the accuracy of her review.

[ 10 ] The justice then set out the law governing her task. In the course of doing so, she referred to the decision of the Supreme Court of Canada in R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828 with respect to the test for committal, where the court wrote (at paragraphs 22 and 23):

22 The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen , 1986 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 par. 8.0 ("[d]irect evidence is evidence which, if believed, resolves a matter in issue"); McCormick on Evidence [page840] (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 par. 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 par. 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 [page841] only whether the evidence, if believed , could reasonably support an inference of guilt.(emphasis in original)

[ 11 ] In addition to referring to the decision in Arcuri , the preliminary inquiry justice referred to the decision of Hill, J. in R. v. Coke, [1996] O.J. No. 808 (Ont. Gen. Div.) in which he wrote (at paragraph 9(3)):

The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and then to discuss any probative force flowing therefrom without regard to the context of the totality of the evidence.

[ 12 ] As with the preliminary inquiry justice's initial recitation of the evidence, no issue is taken with respect to the correctness of the law to which she referred in her reasons.

[ 13 ] After setting out the law, the preliminary inquiry justice also correctly set out the defence position (at paragraph 93) as follows:

The defence position is that Mr. Oben has provided an explanation that the baby fell and the medical experts cannot definitely exclude the rare possibility of a fatal short fall. The difficulty, of course, is that this is not the only explanation given by Mr. Oben and is a direct contradiction of some of the other explanations given by him. The court cannot simply ignore that other evidence. (emphasis in original)

[ 14 ] The problem, it is submitted, is that the preliminary inquiry justice then went on to do what she indicated she should not do, namely, ignore other evidence. Counsel for Mr. Oben highlights the following passage from the preliminary inquiry justice’s reasons, at paragraph 99:

On this preliminary inquiry, it is not open to the court to choose one explanation over another. The evidence from some of Mr. Oben’s statements in combination with both the physical and expert evidence means that there is some evidence from which a jury could infer that Mr. Oben applied significant force to Liam’s head thus inflicting the injuries found on autopsy. In my view, such an inference would not be merely conjecture or speculation. (emphasis added)

She argues that this passage shows that the preliminary inquiry justice failed to take into account Mr. Oben's last statement to the police and that, because she did not take into account all of the evidence, she committed an error going to her jurisdiction.

[ 15 ] With respect, I am unable to agree.

ANALYSIS

[ 16 ] As the court pointed out in Arcuri , the test at a preliminary inquiry is the same whether the evidence called by the Crown is direct or circumstantial. However, where the Crown’s case includes circumstantial evidence going to an essential element of the offence, the preliminary inquiry justice must engage in an exercise in which she determines the group of reasonable inferences that a jury could make on the circumstantial evidence presented. The case must proceed to trial if that group includes an inference or inferences about constituent elements of the offence that could lead to a finding of guilt. This point was made by Hill, J. in R. v. Foster, [2008] O.J. No. 827, at para. 31 (10), where he wrote:

In circumstantial evidence cases, there may exist not one, but a range or field of reasonable inferences which may be drawn. The ultimate determination as to whether an available reasonable inference ought to be drawn is for the trier of fact – a judge is not to ask whether the facts ought to be inferred and is not to make “determinative factual inferences”...

[ 17 ] In determining what inferences form part of the range or group of reasonable inferences, the preliminary inquiry justice must take into account all of the evidence, exculpatory and inculpatory, direct and circumstantial. Where there is conflicting direct and circumstantial evidence on an issue, the preliminary inquiry justice must determine whether it would be reasonable for a jury to infer guilt from the circumstantial evidence in light of the direct evidence. There may be cases in which the direct evidence makes an inference of guilt from the circumstantial evidence unreasonable, but this is not one of them, in my view.

[ 18 ] Counsel for Mr. Oben submits that the only evidence about what happened to Liam during Ms. Fox's absence was the direct, exculpatory evidence of Mr. Oben's last statement and that it was uncontradicted. With respect, that is not correct. There was, in addition, a substantial body of inculpatory circumstantial expert evidence as to what occurred. The preliminary inquiry justice made reference to that evidence in paragraph 101 of her reasons. In that paragraph, she referred to:

(a) evidence that the amount of force being directed to the head was significant;

(b) evidence that one of the impacts involved rotation;

(c) evidence that force was applied to the baby’s ears; and

(d) evidence of the extensive nature of the injuries.

This evidence was at odds with Mr. Oben's last statement to the police, which was also contradicted by his earlier ones.

[ 19 ] The fact that the conflicting evidence is of two different types is of no relevance. Direct evidence is to be given no greater weight than circumstantial evidence. Even where the direct evidence is exculpatory, an accused should be committed to stand trial if the preliminary inquiry justice concludes that the conflicting circumstantial evidence is reasonably capable of sustaining an inference of guilt on the elements of the offence to which the conflicting evidence relates.

[ 20 ] In my view, that is exactly what the preliminary inquiry justice did in this case. She concluded, quite rightly in my opinion, that despite Mr. Oben’s last statement to the police, it was open to the jury to infer from the circumstantial evidence, including the fact that the accused made earlier conflicting statements, that Mr. Oben purposely inflicted the fatal injuries with the intent required under section 229(a)(ii).

[ 21 ] Further, in reaching that conclusion, the preliminary inquiry justice considered the other exculpatory circumstantial evidence. At paragraph 103 of her reasons, she referred to the videotapes of Mr. Oben’s interaction with Liam and the evidence that Mr. Oben had been looking forward to Liam’s birth. She specifically considered that evidence and concluded that Mr. Oben should stand trial as charged, nonetheless. In my view, she was correct to do so. While this evidence might make the jury’s task of choosing between reasonable inferences more difficult, it would not preclude the jury from concluding that Mr. Oben murdered his son, in light of the other inculpatory circumstantial evidence.

[ 22 ] For these reasons, the application is dismissed.

Ellies, J.

Released: 20121022

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JAMIE ALLAN OBEN REASONS FOR decision Ellies, J.

Released: 20121022