COURT FILE NO.: CR-123831MO
DATE: 2013-03-13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Amel Hossenmamode
BEFORE: Mr Justice Ramsay
COUNSEL: Ms V. Gillis for the Crown, responding
Mr P. Calarco for the accused applicant
HEARD: 2013-03-08 at Hamilton
ENDORSEMENT
[1] The applicant was the subject of a preliminary inquiry before Mr Justice Campling into a charge of sexual assault. The applicant asked for extraordinary relief to abort the preliminary inquiry and require that it recommence before another judge. On March 11, 2013 I granted the application, quashed the proceedings before Campling J. and directed that the preliminary inquiry recommence before the Ontario Court of Justice differently constituted. I said that written reasons would follow. These are they.
The evidence
[2] The applicant is charged with sexual assault. The complainant testified that on the evening in question the applicant was at a party at her residence. She drank three drinks of home-made punch and became extremely intoxicated. She did not recall going to her room. When she went to bed she was wearing a shirt, cardigan and tights and had no memory of undressing. She remembered waking up during the night and struggling unsuccessfully to push the applicant off her. In the morning she found blood on her sheets and her room was in disarray. She found shoes by her bed. Her friends made the applicant leave. The complainant went to the hospital. The nurse who examined her testified that the complainant’s breasts were covered in bruises. The complainant was distraught and had a mark resembling a human bite on her jaw. There were no apparent genital injuries and a vaginal swab was not taken because of the complainant’s emotional state.
[3] M., a friend of the complainant, testified that she, too, drank from the punch bowl and was intoxicated. She recalled that the complainant was intoxicated. The complainant went to her room and passed out. Several roommates checked on her and found that she had vomited and was not sensible. M. saw the applicant coming out of the complainant’s room not wearing a shirt or possibly shoes, and quite drunk. He had a cut on his arm.
[4] Another friend, C., checked on the complainant and saw blood on the bed sheets near the complainant’s head. C. testified that she overheard the applicant tell another man words to the effect that he “tried to get it in with [the complainant] but I didn’t get any.”
[5] Reports from the Centre for Forensic Sciences were filed. They said that the applicant could not be excluded as the donor of skin on swabs from the right jaw and breasts of the complainant and a saliva sample from her underwear. The probability of a random match was 1 in 870 trillion. Counsel for the applicant consented to the admission of the reports, but not for the truth of their contents. They would have been admissible for the truth of their contents without consent under s.540 (7) of the Criminal Code.
[6] At this point the judge said that he had formed the tentative view that the evidence was sufficient for a committal and suggested that the balance of the inquiry should proceed as a discovery, subject to the submissions of counsel.
[7] By proceeding as a discovery, he meant that the witnesses would be called, sworn and examined in the courtroom in the presence of the parties and the clerk and court reporter, but in the absence of the judge. The judge would return to the courtroom to decide any objections to questions or any other matter that required his attention. Such a procedure is expressly provided for in Rule 4.1 of the Criminal Proceedings Rules of the Ontario Court of Justice when both parties consent.
[8] Counsel for the applicant at the inquiry, Mr Friedberg, said that he was caught off guard. He said:
I mean, I guess I’m, I’m facing an bit of an uphill battle if your honour’s of the view that it should be converted to … a discovery because I haven’t said anything about committal yet. But what … in fairness what we could do is continue to hear the evidence. I’m not ready to make submissions on this right now.
[9] Discussion ensued about what to do with the rest of the day. The judge said, “I’m not proposing to shut the inquiry down because there may be enough evidence. I’m simply proposing not to sit here being useless if I’m not needed.” Mr Friedberg said, “Well, you’re always needed, your honour … perhaps we could come back tomorrow and I could make submissions.”
[10] The judge decided to proceed as a discovery for the remainder of the day, and to let Mr Friedberg make submissions on committal the following day. Mr Friedberg objected to proceeding in the absence of the judge. The judge ruled that he could proceed in this fashion in the exercise of his power to regulate the inquiry under s.537 (1) (i) of the Code. The Crown called two witnesses that afternoon in the absence of the judge. They were sworn by the court clerk and their evidence was taken down by the court reporter. Mr Friedberg cross-examined. The judge remained available, and in fact returned to the courtroom to rule on an objection.
[11] The following day Mr Friedberg took the position that the judge had lost jurisdiction. The judge ruled that he had not. The judge gave Mr Friedberg the opportunity to make submissions as to whether the evidence that had been called in the presence of the judge was sufficient for a committal. Mr Friedberg declined. The judge ruled that the evidence was sufficient, but he did not order the applicant to stand trial at that point because the applicant had the right to call witnesses. The judge left the courtroom and Crown counsel called another witness, and Mr Friedberg cross-examined. The judge returned to the courtroom and Crown counsel closed her case. The judge offered the applicant the opportunity to call witnesses. The judge left the courtroom and Mr Friedberg called several witnesses who, again, were sworn by the court clerk. At the end of the day, the judge returned, adjourned the inquiry to continue hearing further witnesses, and bound over some witnesses at the request of the applicant. On the return date the inquiry was adjourned again to accommodate the present application.
[12] It is long established that a justice who conducts a preliminary inquiry has only the power conferred by statute: Doyle v. the Queen, 1976 11 (SCC), [1977] 1 SCR 597. Accordingly I propose to set out some of the relevant statutory provisions.
[13] Part XVIII of the Criminal Code contains the following:
- (1) A justice acting under this Part may
(i) regulate the course of the inquiry in any way that appears to the justice to be consistent with this Act and that, unless the justice is satisfied that to do so would be contrary to the best interests of the administration of justice, is in accordance with any admission of fact or agreement recorded under subsection 536.4(2) or agreement made under section 536.5;
- (1) Where an accused is before a justice holding a preliminary inquiry, the justice shall
(a) take the evidence under oath of the witnesses called on the part of the prosecution and allow the accused or counsel for the accused to cross-examine them; and
(b) cause a record of the evidence of each witness to be taken
(i) in legible writing in the form of a deposition, in Form 31, or by a stenographer appointed by him or pursuant to law, or
(ii) in a province where a sound recording apparatus is authorized by or under provincial legislation for use in civil cases, by the type of apparatus so authorized and in accordance with the requirements of the provincial legislation.
(2) Where a deposition is taken down in writing, the justice shall, in the presence of the accused, before asking the accused if he wishes to call witnesses,
(a) cause the deposition to be read to the witness;
(b) cause the deposition to be signed by the witness; and
(c) sign the deposition himself.
(3) Where depositions are taken down in writing, the justice may sign
(a) at the end of each deposition; or
(b) at the end of several or of all the depositions in a manner that will indicate that his signature is intended to authenticate each deposition.
(4) Where the stenographer appointed to take down the evidence is not a duly sworn court stenographer, he shall make oath that he will truly and faithfully report the evidence.
(5) Where the evidence is taken down by a stenographer appointed by the justice or pursuant to law, it need not be read to or signed by the witnesses, but, on request of the justice or of one of the parties, shall be transcribed, in whole or in part, by the stenographer and the transcript shall be accompanied by
(a) an affidavit of the stenographer that it is a true report of the evidence; or
(b) a certificate that it is a true report of the evidence if the stenographer is a duly sworn court stenographer.
(6) Where, in accordance with this Act, a record is taken in any proceedings under this Act by a sound recording apparatus, the record so taken shall, on request of the justice or of one of the parties, be dealt with and transcribed, in whole or in part, and the transcription certified and used in accordance with the provincial legislation, with such modifications as the circumstances require mentioned in subsection (1).
(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.
(8) Unless the justice orders otherwise, no information may be received as evidence under subsection (7) unless the party has given to each of the other parties reasonable notice of his or her intention to tender it, together with a copy of the statement, if any, referred to in that subsection.
(9) The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered as evidence under subsection (7).
- (1) When the evidence of the witnesses called on the part of the prosecution has been taken down and, where required by this Part, has been read, the justice shall, subject to this section, hear the witnesses called by the accused.
(2) Before hearing any witness called by an accused who is not represented by counsel, the justice shall address the accused as follows or to the like effect:
“Do you wish to say anything in answer to these charges or to any other charges which might have arisen from the evidence led by the prosecution? You are not obliged to say anything, but whatever you do say may be given in evidence against you at your trial. You should not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement it may be given in evidence against you at your trial in spite of the promise or threat.”
(3) Where the accused who is not represented by counsel says anything in answer to the address made by the justice pursuant to subsection (2), the answer shall be taken down in writing and shall be signed by the justice and kept with the evidence of the witnesses and dealt with in accordance with this Part.
(4) Where an accused is not represented by counsel, the justice shall ask the accused if he or she wishes to call any witnesses after subsections (2) and (3) have been complied with.
(5) The justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this subsection, section 540 applies with such modifications as the circumstances require.
547.1. Where a justice acting under this Part has commenced to take evidence and dies or is unable to continue for any reason, another justice may
(a) continue taking the evidence at the point at which the interruption in the taking of the evidence occurred, where the evidence was recorded pursuant to section 540 and is available; or
(b) commence taking the evidence as if no evidence had been taken, where no evidence was recorded pursuant to section 540 or where the evidence is not available.
- (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.
[14] The main purposes of a preliminary inquiry are two-fold: to require the Crown to establish a prima facie case and to allow the parties to discover and preserve the evidence of the witnesses.
[15] The applicant is asking me to abort the preliminary inquiry and have it re-commence before a different judge on two grounds:
a. The judge occasioned a reasonable apprehension of bias by announcing his tentative view that the evidence that he had heard was sufficient; and
b. The judge lost jurisdiction by allowing the inquiry to proceed in his absence.
Bias
[16] Expressing a tentative opinion that the evidence heard so far is sufficient does not create a reasonable apprehension of bias: R. v. Cover, 1988 7118 (ON SC), [1988] O.J. No. 1615 (Campbell J.). In fact it is a common and accepted practice, approved by Ewaschuk J. in an unreported case called R. v. Barbara Miner many years ago. A preliminary inquiry is not a trial. The presiding justice will not decide the guilt or innocence of the accused. It can be economical for the judge to express a tentative view. It will allow the parties to reconsider their positions. Crown counsel may decide to close the Crown’s case. The defence may re-assess or reformulate its argument as to the sufficiency of the evidence. Given the nature of the decision the judge will be required to make, a tentative opinion does not give rise to the appearance that the case is already decided. It is not comparable to a trial judge making such a statement about guilt or innocence before the end of a trial. It is more comparable to a motion judge calling on the responding party to make submissions before hearing from the moving party.
[17] In the case at bar, however, the judge continued the inquiry as a discovery during the interval between the announcement of the tentative view and the time appointed for defence counsel’s submissions. I do not doubt that the judge would have received the submissions with an open mind, if counsel had chosen to make any, but proceeding as a discovery in the mean time gave the appearance that the tentative view might have been a firm view. In my view, the appearance of justice requires that the proceedings be recommenced before a different judge. Fortunately, the witnesses who have already testified will not have to testify again. Subsection 540(7) of the Code and the common law rules of evidence will permit the new judge to consider their evidence by reading the transcripts of the original proceeding. In addition, the Attorney General could choose to prefer an indictment under s.577 of the Code.
Absence of the judge from part of the hearing
[18] Section 540 of the Code requires the justice to take the evidence under oath of the prosecution witnesses and to allow the accused or counsel for the accused to cross-examine them and to cause a record of the evidence of each witness to be taken. By virtue of s.541, s.540 applies to witnesses called by the defence. Section 540 allows the justice to take the depositions in writing himself, to cause a stenographer to take them down or, in a province such as Ontario that uses sound recording equipment, to cause a court reporter to take down and transcribe the testimony. In the case at bar the judge fulfilled these duties by having the evidence recorded by a court reporter using sound equipment.
[19] Was he required to be present at the time? Section 540 says that the justice is required to “take” the evidence. Section 541 says that he is required to “hear” the evidence. Does that mean actually listening to it in person? In my view, Re Ward and the Queen (1976), 313 CCC (2d) 466 (Ont. HCJ), appeal to CA dismissed Feb. 15, 1977, does not answer the question. That case dealt with the refusal to allow defence witnesses to be called.
[20] The Supreme Court of Canada’s decision in R. v. Arcuri, 2001 SCC 54, however, does answer the question and it answers in the affirmative. McLachlin C.J. said (emphasis supplied):
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, {1976 8 (SCC), [1977] 2 S.C.R. 1067}, at p. 1080; see also R. v. Monteleone, 1987 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 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 (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 only whether the evidence, if believed, could reasonably support an inference of guilt. …
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.
[21] The Supreme Court, then, has said that the justice is required to consider the whole of the evidence not only before discharging the accused under s.548 (1) (b), as in R. v. Deschamplain, 2004 SCC 76, but before committing the accused for trial under s.548 (1) (a).
[22] I also think it difficult to conceive a justice regulating the course of a contested inquiry when he or she is absent from it. Sympathetic as I am to the judge’s well-placed concern for efficient use of judicial resources I respectfully disagree with his conclusion that s.537 (1) (i) of the Code gave him the authority to proceed as he did.
[23] None of this calls into question the validity of an inquiry conducted as a discovery on consent, as contemplated by Rule 4.4(1) of the Criminal Proceedings Rules of the Ontario Court of Justice. Paragraph 537 (1) (i) of the Criminal Code provides that the justice may regulate the inquiry “in accordance with an agreement recorded under subsection 536.4(2) or made under section 536.5.”
[24] For these reasons the application was allowed.
J.A. Ramsay J.
Date: 2013-03-13