ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-2346-00

DATE: 20130627

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Garfield Boothe and Nichelle Boothe-Rowe

Defendants

K. Slate, for the Crown

D. Doucette and E. Lam for Garfield Boothe

M. Halfyard for Nichelle Boothe-Rowe

HEARD: June 3, 2013

RULING ON THE CROWN'S CERTIORARI APPLICATION

Ricchetti, J.:

THE BACKGROUND

[1] The Defendants were accused of first degree murder of their 10 year old son, Shakeil.

[2] The Preliminary Inquiry was heard between May 17, 2012 and September 10, 2012 before Justice Botham.

[3] For the oral reasons given on November 20, 2012, Justice Botham discharged the Defendants on charges of first degree murder but committed them to stand trial on charges of second degree murder.

[4] By way of certiorari, the Crown seeks to quash the discharge of the Defendants on charges of first degree murder and an order of mandamus directing the Preliminary Inquiry Judge to commit the Defendants on a single count each of first degree murder.

[5] For the reasons that follow, the Crown’s application is dismissed.

THE EVIDENCE AT THE PRELIMINARY INQUIRY

[6] Garfield Boothe is the father of Shakeil. Nichelle Boothe-Rowe is the wife of Garfield Booth and the step mother of Shakeil.

[7] Shakeil came to Canada in 2009 to live with his father. Shakeil’s mother remained in Jamaica.

[8] In September 2010, Garfield Boothe and Nichelle Boothe-Rowe also had a child. A public health nurse attended at the Garfield Boothe home in the fall of 2010 and early winter of 2011 to assist with the new born child. During this period the public health nurse saw no other children at the home and was told by Nichelle Boothe-Rowe that no other children lived in the home.

[9] Nichelle Boothe-Rowe's mother had come to stay with her daughter after the birth of their child. Sometime prior to returning home in December 2010, Nichelle Boothe-Rowe's mother saw Shakeil chained, by his ankle, to his bed. She told Garfield Boothe that he could not do this.

[10] Shakeil stopped attending school in mid-November 2010. Garfield Boothe told the school principal that Shakeil was staying with his grandfather. In December 2010, Garfield Boothe told the school principal Shakeil was going to Jamaica for the holidays. Garfield Boothe told Shakeil's mother that Shakeil had moved in with his grandfather.

[11] Shakeil's last recorded medical treatment or visit was on December 10, 2010.

[12] In January 2011, Garfield Boothe withdrew Shakeil from school, advising the school that Shakeil had moved back to Jamaica. Shakeil's mother was told that Shakeil had moved in with his grandfather during the weekdays.

[13] Nichelle Boothe-Rowe's statement after the arrest was that Garfield Boothe would chain Shakeil to the bed when he went to work. She was also aware that Garfield Boothe was physically assaulting Shakeil (at least once stomping on Shakeil's chest).

[14] Neighbours also testified that in the last few months of Shakeil’s life, he was not observed in the neighbourhood as he had been previously.

[15] Shakeil's mother spoke to him less frequently and it appears Shakeil's calls to his mother may have been overheard or monitored by Garfield Boothe.

[16] Shakeil was seen by family and friends on limited occasions in 2011. In March 2011, at one such family function, he appeared emaciated, very quiet and calm - withdrawn. In one particular event in March 2011, several persons saw Shakeil and were very concerned about his health.

[17] In 2011, Internet searches were done from the Boothe/Boothe-Rowe home on home remedies for pneumonia and bleeding from the ear.

[18] In early May 2011 Nichelle Boothe-Rowe cancelled the regular visits by the public health nurse to her home.

[19] On May 25, 2011 Claudette Boothe (Garfield Boothe's father's ex-wife) reported her suspicions that Shakeil was being physically abused to the Children's Aid Society (CAS). The CAS social worker called and spoke to a male who identified himself as Shakeil's father. This person told the social worker that Shakeil was living in Oshawa.

[20] Shakeil died sometime on May 26, 2011. Early that morning Nichelle Boothe-Rowe heard Garfield Boothe yelling at Shakeil. Garfield Boothe then went to work. After she got up, Nichelle Boothe-Rowe could not find Shakeil until she went into the basement and found him lying on the floor with no pulse. Nichelle Boothe-Rowe called Garfield Boothe at work. Garfield Boothe returned home early from work.

[21] Garfield Boothe went to the bank and withdrew essentially all the monies from a joint bank account in the name of Garfield Boothe and Shakeil Boothe. Garfield Booth arranged for a moving company and rented a storage unit. Garfield Boothe took Nichelle Boothe-Rowe and their young infant to the bus terminal. Nichelle Boothe-Rowe and the infant left for the United States.

[22] On May 27, 2011 Garfield Boothe took a taxi to Pearson International Airport. He then took another taxi home. When he arrived he told the movers he had just come back from Jamaica. Garfield Boothe told the movers not to go into the closed bedroom.

[23] Commencing midnight on May 27. 2011, there were numerous text messages between Garfield Boothe and Nichelle Boothe-Rowe about contacting Burke Boothe (Garfield Boothe’s father) and to call 911. On the afternoon of May 27, 2011, Garfield Boothe contacted Burke Boothe. Burke Boothe came to the house. Garfield Boothe told Burke Boothe that Shakeil was sick. Burke Boothe found Shakeil dead in his room covered with a sheet. Burke Boothe told Garfield Boothe to call 911. 911 was called. The paramedics arrived and found Shakeil dead.

[24] Nichelle Boothe-Rowe’s statement denies assaulting Shakeil but instead states that she was protective of him. She would on occasion unchain Shakeil from the bed while Garfield Boothe was away but would re-chain Shakeil before Garfield Boothe returned. Nichelle Boothe-Rowe had asked Garfield Boothe to get Shakeil medical attention for his “bad cold”.

[25] The police forensic unit discovered:

a) Shakeil's blood was found throughout the house - in his bedroom and in and near the hallways, kitchen, basement stairs, and basement bathroom. Some blood stains had been previously washed away; and

b) Shakeil's blood stain on the bottom side of his mattress.

[26] The Cause of Death in the Post-mortem Examination stated:

Blunt musculocutaneous injury in a malnourished and repeatedly injured child with staphylococcal pneumonia and Goup A steptococcal bacteremia.

[27] The forensic pathologist who conducted the post-mortem, Dr. Pollanen, testified at the Preliminary Inquiry that he found Shakeil had numerous recent and dated injuries, was markedly undernourished and had pneumonia. Food was found in Shakeil's stomach. The recent injuries to Shakeil had occurred within minutes or hours of his death. He concluded that the cause of death was a combination of:

a) Recent trauma and the effects of prior abuse;

b) Malnutrition; and

c) Infection.

[28] Dr. Pollanen listed two pages of recent injuries to Shakeil and a further 2 1/2 pages of "healing or healed" injuries. Dr. Pollanen reported "These are the hallmarks of repetitive inflicted injury with food restriction"..."The body was in a state of chronic debilitation at the time of death."

[29] Dr. Pollanen testified at the Preliminary Inquiry:

In my view, the presence of the recent injuries is the, sort of, the primary effect, or the primary mode or mechanism of his death, but its occurring in this context. So it’s difficult to separate off all of the other variables that are involved here. That’s why I’ve given the cause of death as, sort of a, combination of malnutrition, repeated injury, recent injury and infection because I think it’s difficult for us to reduce this case simply to recent injury or infection.

I would say that his pneumonia and his malnutrition, his debilitated state, might very well have killed him in the absence of the recent injuries. Could - if he was not infected, could he have died of his recent injuries alone? Quite likely. But the fact is, he is him....he is the whole summation of all this medical processes, and they've all come together at the end and in this interplay causing death.

[30] The Post-mortem Examination Report stated:

Mechanism of Death

Hypovolemic shock was the mechanism of death due to the widespread subcutaneous bleeding and edema. These injuries were the primary cause of death. The injuries were extensive and likely occurred within the last minutes to hours of life, as indicated by the presence of only fresh bleeding and edema. In addition, there was infection with gram positive cocci, including steptococcus pyogenes and staphylococcus aureus. This infection would have caused the release of bacterial toxins that would adversely affect metabolism and would have made this child more vulnerable to injury, thus reducing survivability after trauma. The pneumonia and infected skin wounds are a well characterized intercurrent complications of chronic injury and malnutrition. IN general, malnutrition and ongoing injury reduces the capacity of the human body to respond to injuries and resist infection. It is also possible that part of the dying process was terminal bacteremic seeding of the body from the infected skin wounds, as hypovolemic shock progressed.

Conclusion

Shakeil Boothe, a 10 year old boy, died of musculocutaneous injuries sustained by being hit heavily and repeatedly. His ability to survive the effect of these injuries was diminished by his debilitated state from malnutrition, old injuries sustained by repetitive trauma (including whipping/lashing) and multiple bacterial infections (lung, skin and bloodstream).

Cause of Death

Blunt musculocutaneous injury in a malnourished and repeatedly injured child with staphylococcal pneumonia and group A streptococcal bacteremia.

[31] There can be no doubt that Shakeil suffered horribly in the last few months of his life.

THE PRELIMINARY INQUIRY JUDGE'S RULING ON COMMITTAL

[32] Justice Botham was both clear and accurate as to the role of a Preliminary Inquiry Judge and the law to be applied regarding a committal where the evidence is circumstantial as to an essential element.

[33] Justice Botham accepted the Crown’s submissions that there was some evidence a reasonably instructed jury might reasonably conclude that Garfield Boothe and Nichelle Boothe-Rowe were guilty of manslaughter or second degree murder. No issue is taken with respect to these conclusions.

[34] Justice Botham concluded there was insufficient circumstantial evidence from which a reasonable inference could be drawn that this was a “planned and deliberate” murder (s. 231(2) of the Code) or that there was any evidence this murder was “in respect of a person when the death is caused by that person while committing”… a forcible confinement (s. 231 (5) (e) of the Code).

[35] Justice Botham reviewed the evidence at the Preliminary Inquiry. She was alive as to the medical evidence and the cause of death:

Dr. Pollanen cautioned that it is difficult to isolate any one factor as the actual mechanism of death. Although not necessarily life threatening on its own, the bleeding into the soft tissues and swelling resulting from the recent trauma would have reduced the volume of circulating blood causing Shakeil to experience hypovolemic shock. Given his vulnerable state, weakened by malnourishment, infection and pneumonia, Shakeil was unable to handle the shock and he died.

Planned and Deliberate

[36] Justice Botham went on to consider the Crown’s submission:

The Crown submits that the evidence of both historical and recent trauma to Shakeil, and the absence of any medical intervention for those injuries, point to a pattern of behaviour from which an inference could be drawn that both accused, either as parties or principals, planned to inflict grievous bodily harm which they knew was likely to cause death and were reckless as to whether or not death occurred. This inference of planning and deliberations is strengthened when one considers the actions taken to isolate Shakeil by removing him from school and outside scrutiny and the post offence conduct of both defendants.

[37] After reviewing the facts and the law, Justice Botham concluded:

The evidence at this Inquiry does not support that inference. As Dr. Pollanen explained, it was the triggering event of the final assault which pushed Shakeil into crisis, a physical crisis which led to his death. It was at that time that an inference could be drawn that the defendants did know that Shakeil was likely to die without medical intervention and yet did nothing, thus satisfying the intent for murder under Section 229(a) (ii).

Prior to the final assault there is no evidence that the harm occasioned Shakeil was of the type likely to cause death or that either the accused would have known that death was a likely outcome. There is evidence of course that he was beaten. Those injuries had healed. He had cuts to his legs which were untreated and had become infected and he had developed pneumonia. However, the nature of the injuries does not support an inference that either or both of the defendants were acting in accordance with a plan to cause grievous bodily harm to Shakeil, knowing that he was likely to die as a result of their actions.

Unlawful Confinement – Garfield Boothe

[38] Justice Botham concluded that the only evidence Garfield Boothe had confined Shakeil was Nichelle Boothe-Rowe’s mother’s evidence that she had seen Shakeil chained to the bed and had spoken to Garfield Boothe about this. However, this observation was made in the fall of 2010, months before Shakeil’s death. After considering whether the evidence that Shakeil had been withdrawn from school and the neighbours might permit a reasonable inference to be drawn, Justice Botham concluded:

I am not satisfied that this evidence would support an inference that whatever acts of confinement took place were part of the same transaction as murder.

Unlawful Confinement – Nichelle Boothe-Rowe

[39] As for Nichelle Boothe-Rowe, the only evidence was Nichelle Boothe-Rowe’s statement that she was aware Shakeil was being tied up by Garfield Boothe, and assuming she could be a party to the offence for failing to prevent the confinement, Justice Botham concluded:

… again in my view the evidence does not support the inference that the act of confinement was part of the same transaction as murder.

There is no evidence upon which a properly instructed jury could find that Nichelle Boothe-Rowe played an active role in Shakeil’s death.

THE LAW

The Test for Committal at a Preliminary Inquiry

[40] If there is some admissible evidence on each essential element, the Preliminary Inquiry Judge must commit the defendant to trial. The failure to do so is a jurisdictional error. See. R. v. Sazant 2004 SCC 77, [2004], S.C. J. No. 74 (S.C.C.).

[41] The Preliminary Inquiry Judge must consider all of the evidence. See: s. 548(1) (b) of the Code. The failure to do so is a jurisdictional error. See: Sazant, supra.

[42] The Preliminary Inquiry Judge does not weigh the evidence for competing inferences or choose one inference over another - that assessment is for the trier of fact. See: Arcuri supra. If there are competing inferences, the Preliminary Inquiry Judge is not to weight the competing inferences but to only consider any inference(s) that favour the Crown. R. v. Sazant, 2004 SCC 77, [2004] 3 S.C. R. 635 at para. 18.

[43] Where the evidence on an essential element is entirely based on circumstantial evidence, the Preliminary Inquiry Judge must, by necessity, embark upon a limited weighing of the evidence to determine whether a properly instructed jury could draw a reasonable inference from all the evidence. See: Arcuri, supra paras. 1 and 23. The inference need not be “compelling” or even “easily drawn” in order to be reasonable. R. v. Munoz, 2006 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.) at paras 21-22.

Certiorari Applications

[44] There is no real disagreement regarding this court's jurisdiction on a certiorari application. This court may only grant relief where the lower court has acted in excess of its jurisdiction. See: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.).

[45] This court may not overturn a decision simply because this court might have come to a different conclusion than the Preliminary Inquiry Judge's conclusion. See: R. v. Russell (2001), 157 (3d) 1 (S.C.C.). As stated in Russell, supra, at para. 26: “It is well-settled law that errors as to the sufficiency of the evidence are within the jurisdiction of the preliminary inquiry judge, as long as there is some evidence supporting the committal…”

[46] It is an error for a preliminary inquiry judge to make a “decision on the discharge of an accused to be made without full regard to all of the evidence. In my view, it is a jurisdictional error for a preliminary inquiry judge to fail to consider the “whole of the evidence” as required under s. 548(1)(b), and the Ontario Court of Appeal erred in concluding otherwise.” See: R. v. Deschamplain [2004] 3 S.C.R. 602 at para. 18.

Murder Provisions of the Code

[47] The relevant Code provisions are:

229. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

o (b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

231. (1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate.

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(e) section 279 (kidnapping and forcible confinement); or

(7) All murder that is not first degree murder is second degree murder.

[48] What is “planned and deliberate” was described by the Supreme Court in R. v. Nygaard, 1989 6 (SCC), [1989] 2 S.C.R. 1074:

What then is the meaning of planned and deliberate and can that classification be applied to the requisite intents set forth in s. 212(a)(ii)? It has been held that "planned" means that the scheme was conceived and carefully thought out before it was carried out and "deliberate" means considered, not impulsive. A classic instruction to a jury as to the meaning of "planned and deliberate" was given by Gale J., as he then was, in R. v. Widdifield (1961), Ontario Supreme Court, unreported, as excerpted in 6 Crim. L.Q. 152, at p. 153:

I think that in the Code "planned" is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.

As far as the word "deliberate" is concerned, I think that the Code means that it should also carry its natural meaning of "considered," "not impulsive," "slow in deciding," "cautious," implying that the accused must take time to weigh the advantages and disadvantages of his intended action.

[49] What is required for first degree murder under s. 231(5) of the Code was described by the Supreme Court in R. v. Harbottle, 1993 71 (SCC), [1993] 3 S. C. R. 306. First degree murder under s. 231(5) of the Code requires that the defendant participated in the murder in a manner that was a substantial cause of the death:

The consequences of a conviction for first degree murder and the wording of the section are such that the test of causation for s. 214(5) must be a strict one. In my view, an accused may only be convicted under the subsection if the Crown establishes that the accused has committed an act or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of the death. A case which considered and applied a substantial cause test from Australia is R. v. Hallett, [1969] S.A.S.R. 141 (S.C. in banco). In that case, the victim was left beaten and unconscious by the sea and was drowned by the incoming tide. The court formulated the following test of causation, at p. 149, which I find apposite:

The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event.

The substantial causation test requires that the accused play a very active role -- usually a physical role -- in the killing. Under s. 214(5), the actions of the accused must form an essential, substantial and integral part of the killing of the victim. Obviously, this requirement is much higher than that described in Smithers v. The Queen, 1977 7 (SCC), [1978] 1 S.C.R. 506, which dealt with the offence of manslaughter. There it was held at p. 519 that sufficient causation existed where the actions of the accused were "a contributing cause of death, outside the de minimis range". That case demonstrates the distinctions in the degree of causation required for the different homicide offences.

THE POSITION OF THE PARTIES

[50] The Crown submits that the Preliminary Inquiry Judge committed jurisdictional error by failing to consider the whole of the evidence as required by s. 548(1)(b) of the Code. The Crown submits that the Preliminary Inquiry Judge focussed on the final assault and failed to consider the conduct of the Defendants and the other evidence as to what had occurred over the preceding months leading to Shakeil's death, and the post offence conduct of the Defendants, as the evidence upon which a "reasonable inference" could be drawn that Shakeil's death was planned and deliberate to cause the death or likely to cause the death of Shakeil and were reckless as to whether death ensued.

[51] While not the subject of oral argument, the Crown submits that the same failure to consider the whole of the evidence resulted in discharge of the Defendants of first degree murder under s. 231(5) of the Code.

[52] Both Defendants submit that the Preliminary Inquiry Judge committed no jurisdictional error as she properly considered all of the evidence and her decision, right or wrong, is not a jurisdictional error. The Defendants submit the Application should be dismissed.

ANALYSIS

Planned and Deliberate

[53] In essence, the Crown’s submission at the Preliminary Inquiry was that there was evidence upon which a properly instructed jury could reasonably conclude the Defendant’s plan, over several months, was to deliberately cause, through acts or omissions, death or grievous bodily harm knowing that it was likely to cause death and were reckless as to whether death ensued:

...as these events were continuing, over this period of time, in the five month period, when, Shakeil was withdrawn from school, that the continuation of this state of affairs would likely cause Shakeil's death.

[54] The issue before Justice Botham was whether a reasonable inference could be drawn from all the evidence that the defendants had planned and deliberately intended to either cause Shakeil’s death or to cause harm to Shakeil that they knew was likely to cause his death and were reckless as to whether death ensued.

[55] The Crown submits that Justice Botham focussed on the final assault and failed to consider the evidence that Shakeil had been suffering from malnutrition, pneumonia and prior injuries in the weeks leading up to the final assault and the actions of the Defendants after Shakeil’s death as the basis upon which a reasonable inference of planning and deliberation to cause or likely to cause death might by drawn.

[56] It is clear from page 11 lines 12-25 of her reasons that Justice Botham appreciated the Crown’s position was that the inference of planning and deliberation could be drawn from everything Shakeil had been subjected to over the few months leading to his death and the surrounding circumstances and conduct of the defendants over this same period of time and subsequently. Justice Botham did not accept this submission.

[57] Justice Botham referred to the final assault because, on the evidence before her, it was the “primary mode” of Shakeil’s death. However, it is very clear, from a reading of Justice Botham’s entire decision, that she considered and referred in her reasons to:

a) The medical evidence as to the cause of death;

b) The forensic evidence that Shakeil was undernourished, had extensive prior injuries and severe and untreated pneumonia and that Shakeil's serious health condition would have been apparent to anyone who saw Shakeil;

c) The number of serious injuries inflicted on Shakeil over a period of time including that his blood was shed extensively through the home in which the Defendants were the only adults;

d) The legal obligation and failure of the Defendants to provide proper nourishment for significant time to Shakeil resulting in his seriously undernourished condition on May 26, 2011;

e) The pneumonia and injuries which Shakeil suffered and the lack of medical attention by the Defendant in the 5 months prior to Shakeil's death;

f) The withdrawal of Shakeil from school, from the public and evidence that the Defendants misled others as to Shakeil's whereabouts in circumstances where his appearance to third parties might raise questions regarding abuse or ill health; and

g) The post-offence conduct of the Defendants.

[58] Suggesting that Justice Botham only focused on the final assault (at page 13 of the reasons) is not a fair or accurate reading of her entire reasons.

[59] The Crown submits that there were significant portions of the evidence which Justice Botham fails to refer to in her reasons. No doubt, there are several portions of the evidence from the extensive preliminary inquiry not referred to by Justice Botham. However, the court is not required to refer to all of the evidence before the court. See: Deschamplain supra at para. 21.

[60] The final issue before Justice Botham was not whether the Defendants intended to cause Shakeil's death or was likely to cause Shakeil's death. The final issue was whether there is any evidence from which a properly instructed jury could infer that the Defendants had planned and deliberately intended to cause Shakeil’s death or engaged in a course of conduct that was likely to cause Shakeil's death.

[61] The Crown also submits that Justice Botham failed to consider the cumulative effect of the evidence in the same manner as in R. v. E. B. (2006), O. J. No. 1564 and R. v. Irving and Johnson, 2011 ONSC 7561. Justice Botham found that, in E.B. supra, "it would have been clear to anyone during the weeks and months leading to the child's death that without medical intervention he would die, supporting an inference that the accused planned to cause him grievous bodily harm knowing that it would likely lead to his death". In contrast to the evidence in E.B. supra, Justice Botham found that the evidence in this case did not reasonably support the same inference sought by the Crown in this case.

[62] Justice Botham did not refer to Irving and Johnson, supra, but there is no obligation on a judge to refer to all the cases counsel have brought to the court’s attention. I agree that many of the issues and facts in Irving and Johnson, supra, are similar to this case, including many of the factors which Justice Ducharme referred to in paragraph 44 which gave rise, in that case to the Preliminary Inquiry Judge determining that a possible reasonable inference could be drawn that the murder of the child was planned and deliberate.

[63] While not expressly stated as such, the Crown’s position is that, if Justice Botham had considered all the evidence in this case (which is similar to the facts in Irving and Johnson supra) the same possible reasonable inference that the killing was planned and deliberate was available in this case. There are several problems with this submission:

a) First, I am satisfied that Justice Botham did consider all the evidence. Her reasons disclose that she was aware of the factors described in paragraph 44 of Irving and Johnson, supra. She then went on to determine whether the reasonable inference of planning and deliberation could be drawn in this case. The Crown relies on Deschamplain, supra, as an example of where the Preliminary Hearing Judge's failure to consider all the evidence was a jurisdictional error. In Deschamplain, supra, the Preliminary Inquiry Judge made a positive finding there was no evidence supporting a critical fact going to an essential element but the appellate court found that, indeed, there was evidence to supporting that fact (see para. 21 of Deschamplain, supra). The absence of any reference to the supporting evidence led the appellate court to conclude that the Preliminary Inquiry Judge had failed to consider all the evidence. No such clear erroneous finding is present in this case. Having covered all the relevant areas at some point in her reasons, it would be nothing more than speculation that Justice Botham did not consider all the evidence when she came to a determination as to whether the reasonable inference advanced by the Crown could or could not be drawn; and

b) Secondly, it is clear that Justice Botham having reviewed all of the relevant evidence concluded that no such reasonable inference was available on the evidence before her. That decision is one which is clearly within her jurisdiction to make. Whether this court would have made the same decision is irrelevant. Justice Botham’s decision, right or wrong, does not amount to a reviewable jurisdictional error by way of certiorari. As stated in Deschamplain, supra (para. 23):

Conversely, [where there is a discharge], it 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…

[64] I am not persuaded that Justice Botham made a jurisdictional error in determining the evidence before her did not permit a reasonable inference of planning and deliberation to be made as to the murder of Shakeil.

Unlawful Confinement

[65] The Crown did not advance this submission in oral argument; however, the argument was set out in its factum. Simply put, the Crown submits that the course of conduct of the Defendants in the circumstances of this case could also permi