ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-C1072
Cornwall, Ontario
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
KENNETH KUNO
Respondent
Isabel Blanchard, for the Crown
Lorna Paradis, for the Respondent
HEARD: November 21, 2013
REASONS FOR DECISION ON A CERTIORARI APPLICATION
mARANGER j.
[1] This was a Crown application for certiorari against the order of Mr. Justice Giamberardino discharging Kenneth Kuno respecting charges under section 161 and section 733.1 (1) of the Criminal Code of Canada, RSC 1985, c.C-46, section 548. The prosecution is seeking an order committing the respondent to stand trial on those two charges.
[2] The factual background to this case can be described as follows:
• On May 15, 2012 Kenneth Kuno was bound by a section 161 order providing “that he was prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present”
• On May 15, 2012, at 2:10 PM he was fishing from the floating wharf in Cornwall Harbour. He was approached by a conservation officer for the city of Cornwall requesting if he had a fishing license. He did not have a license. Mr. Kuno then gave his name, birth date and address to the officer.
• At about 3:10 p.m. a police officer attended and arrested him for being in breach of his section 161 order and his probation order for failing to keep the peace.
• On January 18, 2013, a preliminary inquiry was held. At the inquiry the sole issue put to the judge was to determine whether the bike path could fall under the definition of a public park or a public swimming area.
• Following the evidence and submissions of both counsel the preliminary inquiry justice requested additional submissions on the issue of mens rea. These were made on April 9, 2013.
• The decision was reserved until June 4, 2013. On that date the preliminary inquiry judge discharged the accused offering the following conclusion:
…based on the date of the offence and the time of year, I’m not prepared to infer that this was an area where persons under the age of 16 can reasonably expect to be present. In fact, swimming in the area was essentially prohibited. If I’m wrong in my characterization of the area where Mr. Kuno was found and it is subsequently found to be a public park where persons under the age of 16 years could reasonably expect to be present, then I still find that there is no evidence before me that Mr. Kuno knew he could not attend this floating bridge for the purpose of fishing. Ultimately, in my view with there being no evidence on at least the essential element of mens rea on these offences before the court, it is my ruling that Mr. Kuno is discharged on both counts.
[3] The task of a preliminary inquiry judge is to determine whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. In cases of circumstantial evidence the court is allowed to conduct a limited weighing of the evidence, and ask whether the evidence if believed could reasonably support an inference of guilt. R v. Arcuri [2001] S.C.J. No. 21.
[4] The preliminary inquiry judge should be considering the evidence as a whole and not in isolated segments. R v. D.M., [2008] O.J. No. 326, ONCA 69.
[5] It seems to me that in this case the central issue that concerned the preliminary inquiry judge was whether there was any evidence to support the proposition that the accused person knew that by being in a certain area he was in breach of the court orders.
[6] In this case he concluded that there was not. The issue for this court to consider is whether in doing so he committed a reviewable jurisdictional error, or whether he predicated his determination on the sufficiency of the evidence which is a matter that is not subject to review by a Superior Court.
[7] In R v. Deschamplain 2004 SCC 76, [2004] 3 S.C.R. 601 at paragraph 23 the Supreme Court of Canada described the analysis involved when a Court is called upon to review the decision of a preliminary inquiry judge not to commit an accused of a particular offence.
The jurisprudence of this Court leaves no doubt that a preliminary inquiry judge commits a jurisdictional error by committing an accused for trial under section 548(1) (a) when an essential element of the offence is not made out… Conversely, 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… In that situation, it would be improper for a reviewing court to intervene merely because the preliminary inquiry judge’s conclusion on sufficiency differs from that which the reviewing court reached.
[8] I cannot say after considering the evidence presented at the preliminary inquiry and the reasons of the preliminary inquiry justice that he committed a jurisdictional error. In truth, his conclusion that there was no evidence of mens rea upon which a properly instructed jury could reasonably convict in this case was a reasonable finding.
[9] Therefore, the application is dismissed.
Maranger J.
Released: November 27, 2013
COURT FILE NO.: 12-C1072
Cornwall, Ontario
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
KENNETH KUNO
Respondent
REASONS FOR DECISION ON A CERTIORARI APPLICATION
Maranger J.
Released: November 27, 2013