R. v. Tidey, 2015 ONSC 1182

COURT FILE NO.: CR-14-243

DATE: 20150224

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

ANDREW TIDEY

Respondent

K. Hull, for the Crown

No one appearing on behalf of the Respondent

HEARD: February 9, 2015

Cases Cited:

R. v. Arcuri, 2011 SCC 54

R. v. Szant, 2003 20189 (ON CA), [2003] O.J. No. 4001 (ONCA)

R. v. Russell, 2001 SCC 53, [2001 S.C.J. No. 53

R. v. Deschamplain, 2003 52134 (ON CA), [2003] O.J. No. 570 (ONCA)

R. v. Coke, 1996 O.J. No. 808

R. v. Katawaru, 2001 24112 (ON CA), [2001] O.J. No. 209 (ONCA)

VALLEE J.

Application

[1] This is an application for an order of mandamus with certiorari in aid. The applicant Crown requested an order to quash the discharge of Andrew Tidey on the offence of aggravated assault. The Crown also requests an order directing the preliminary inquiry judge to commit Mr. Tidey for trial on this charge.

Issue

Did the preliminary inquiry judge commit a jurisdictional error by failing to consider all of the evidence and the inference in favour of the Crown?

Role of the Preliminary Inquiry Judge

[2] A judge acting under Part XVIII of the Criminal Code pursuant to s. 548(1) shall order the accused to stand trial where, if it is in his or her opinion, “there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence with respect to the same transaction.”

[3] In determining whether sufficient evidence exists, the preliminary inquiry judge carries out a discretionary, constrained assessment of “the whole of the evidence.” If there is sufficient evidence upon which a reasonable and properly instructed jury could find guilt, the preliminary inquiry judge must commit the defendant to trial. This committal test is the same regardless of whether the evidence is circumstantial or direct. (see R. v. Arcuri, paras. 21,22)

[4] A preliminary inquiry judge is generally not empowered to assess the quality, reliability and credibility of the evidence. Where more than one inference can be drawn from the evidence, “only the inferences that favour the Crown are to be considered.” (see R. v. Sazant)

[5] Nevertheless, the prohibition against weighing evidence in assessing sufficiency is modified where the prosecution adduces and relies upon circumstantial evidence to establish and essential element of an offence. In these cases, there is an evidentiary gap which can only be filled by inference. Accordingly, the preliminary inquiry judge must determine whether the elements of the offence may be reasonably inferred from the circumstantial evidence. In carrying out this determination, the judge is required to engage in a “limited weighing” of such evidence in order to assess “the reasonableness of the inference to be drawn from the circumstantial evidence.” (see Arcuri para. 23)

[6] In cases involving circumstantial evidence, the preliminary inquiry judge must assess whether the evidence is reasonably capable of supporting the inference that the Crown would ask a jury to draw. The judge should not consider whether he or she would conclude that the accused is guilty, draw factual inferences or assess credibility. The preliminary inquiry judge must determine only whether the evidence, if believed, could reasonably support an inference of guilt. (see Arcuri para. 33)

The Drawing of Inferences versus Speculation or Conjecture

[7] The primary facts which provide the basis for the inference must be established by the evidence. If those primary facts are not established, then any inferences drawn from them will be based on impermissible speculation.

Role of the Reviewing Court

[8] A preliminary inquiry judge’s determination of sufficiency of the evidence is entitled to the greatest deference. A court reviewing by certiorari a decision made by a preliminary inquiry judge exercises limited authority for intervention. A reviewing court may provide a remedy for jurisdictional error only. Errors of law are not reviewable by way of certiorari. (see R. v. Russell para. 19)

[9] In R. v. Sazant, the Supreme Court commented on potential actions of a preliminary inquiry judge which would result in jurisdictional error. The following are two examples: a) choosing inferences favourable to the defence over inferences favourable to the Crown, and b) failing to consider the whole of the evidence.

Did the Preliminary Inquiry Judge Commit a Jurisdictional Error by Failing to Consider all of the Evidence and the Inference in Favour of the Crown?

[10] On January 10, 2013, Mr. Gruber went to visit his step-daughter, Brandy Marsh. She was renting an apartment from the Respondent, Andrew Tidey. Mr. Gruber rode his bicycle to the building. When he arrived, he left his bike on the grass outside of the house. Mr. Gruber had his hair tied back into a ponytail as was his custom.

[11] While at the residence, Mr. Gruber decided to speak with Mr. Tidey about recovering some of his step-daughter’s last month’s rent. Mr. Tidey lived in the other unit in the building. Mr. Tidey came to his apartment door, holding a butcher knife. Mr. Gruber introduced himself to Mr. Tidey. He began to panic, because Mr. Tidey had a knife.

[12] Mr. Tidey began screaming at Mr. Gruber to “get out of his house.” Mr. Gruber then began to leave as he thought Mr. Tidey was coming towards him. As Mr. Gruber reached the front door, Mr. Tidey had caught up to him. Mr. Gruber’s last memory of being inside the house was when he turned around to exit. After this, Mr. Gruber’s next memories are of waking up in an ambulance, and waking up at the hospital.

[13] On January 10, 2013, Steven Chambers was standing outside the front of his house, smoking a cigarette. While outside, he heard shouting. Mr. Chambers looked down the street and saw three people. One was female. The other two were males.

[14] Mr. Chambers saw that one of the males was down on the ground. The other male looked to have him by the scruff of the shirt, and was standing over him. The standing male was shouting, “Get outta here, get outta my house; I’m going to call the cops.”

[15] Mr. Chambers then saw the standing male hit the other male repeatedly with closed fist. To Mr. Chambers, the person being punched looked like he was in his mid-20’s, with longer hair that was about shoulder length pulled back into a ponytail. Mr. Chambers was not certain of the males’ appearance, as he was about a hundred metres away. From what Mr. Chambers could see, the person being punched was not offering any resistance to the blows. He did not put his hands up to defend himself. There was no defensive posture.

[16] Mr. Chambers also noticed that there was a bicycle lying on the grass beside the sidewalk. The bicycle was in front of a brown brick house, possibly a duplex.

[17] Mr. Chambers called 911 to report the incident and witnessed a SUV pulling over in order to offer assistance. After the beating had taken place, Mr. Chambers observed the victim staggering, stumbling, and falling down. He was showing obvious signs of being in some kind of trouble. The police arrived shortly afterwards.

[18] In discharging Mr. Tidey, the preliminary inquiry judge concluded that there seemed to be a lack of some evidence, direct or circumstantial, that Mr. Tidey caused Mr. Gruber’s injuries. The preliminary inquiry judge concluded that the evidence did not provide a basis to infer that Mr. Tidey followed Mr. Gruber outside his home to the roadside, or that it was Mr. Tidey whom Mr. Chambers saw striking Mr. Gruber.

The Crown’s Position

[19] The Crown states that based on the evidence at the preliminary inquiry, a jury could reasonably infer that Mr. Tidey followed Mr. Gruber outside and assaulted him. The Crown contends that the preliminary inquiry judge weighed competing inferences from the evidence, failed to consider the evidence as a whole and considered evidence in isolation. Accordingly, he committed jurisdictional error in not committing Mr. Tidey to trial.

[20] The preliminary inquiry judge concluded that the Crown was required to call some evidence that placed Mr. Tidey at the outdoor scene of the alleged assault and some evidence that Mr. Gruber’s injuries were caused by an assailant at that location.

[21] Based on the totality of this evidence, the Crown submits that it is reasonable to infer that Mr. Chambers was witnessing Mr. Tidey assaulting Mr. Gruber outside of his home.

[22] Further, it is also reasonable to infer that Mr. Gruber, sustained a significant assault to his head, which rendered him incapable of defending himself or remembering what had happened. His lack of memory about what happened in between exiting Mr. Tidey’s house and waking up in an ambulance is consistent with such an attack. Further, the fact that Mr. Gruber took no defensive action, as witnessed by Mr. Chambers, is consistent with Mr. Gruber’s being assaulted in such a brutal manner while outside of the house.

[23] The Crown submits these reasonable inferences should have been resolved in favour of the Crown. However, the preliminary inquiry judge erred by impermissibly weighing these inferences against competing inferences that could also be gleaned from the evidence regarding what took place. In his reasons for discharging Mr. Tidey, the preliminary inquiry judge commented that:

The prospect of there being more than one person that night with an animus toward Mr. Gruber which might lead to the violence against him seen by Mr. Chamber, assuming it was Mr. Gruber who was seen by Mr. Chambers, may seem remote, but…

[24] It is clear from this comment that the preliminary inquiry judge was weighing competing inferences against the inferences available to the Crown. In doing so, the preliminary inquiry judge usurped the role of the trier of fact. In his reasons, the preliminary inquiry judge was considering the strength of inferring that more than one person may have had animus toward Mr. Gruber and was capable of attacking him. This was improper. While it is open to a preliminary inquiry judge to consider whether there are permissible inferences to be drawn from circumstantial evidence, a jurisdictional error occurs when the preliminary judge engages in weighing them.

[25] The only question to be considered is whether the inference requested by the Crown is a permissible one.

Analysis

[26] In R. v. Coke at para. 9, Hill J. offered the following comments with respect to permissible inferences:

Any reasonable interpretation of permissible inference from the evidence, properly admissible against the accused, beyond conjecture or speculation, is to be resolved in favour of the prosecution. Some evidence, if only at the level of a scintilla of evidence, must however exist respecting the constituent elements.

[27] Accordingly, when the preliminary inquiry judge to chooses among competing or alternative reasonable inferences, he makes a jurisdictional error. It is clear from the preliminary inquiry judge’s comments that he was engaged in a weighing exercise.

[28] Although an inference may not be easily drawn, compelling, or obvious, any reasonable inference is permissible. (See R. v. Katwaru at para. 40)

In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.

[29] Even if the inference that it was Mr. Tidey who attached Mr. Gruber outside was not easy to draw, compelling, or obvious, based on the whole of the evidence, it is still a reasonable one. As such, this inference should have been resolved in favour of the Crown.

Did the Preliminary Inquiry Judge Fail to Consider the Whole of the Evidence?

[30] A preliminary inquiry judge who fails to consider the whole of the evidence commits jurisdictional error.

[31] Preliminary inquiry judges are bound to act within, and in accordance with Part XVIII of the Criminal Code and the enumerated provisions. One provision, section 548, provides as follows:

548(1) When all the evidence has been taken by the justice, he shall

(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.

[32] It is well established that this mandatory provision requires the preliminary inquiry judge to consider the “whole of the evidence”. Failure to do so constitutes a jurisdictional error.

[33] In this case, the preliminary judge erred by failing to consider the whole of the evidence presented by the Crown. This error is evident in the following comment in the preliminary inquiry judge’s decision:

What seems to be lacking is some evidence, direct or circumstantial, that Mr. Tidey caused Mr. Gruber’s injuries. The evidence called does not, in my view, give me a basis to infer that it was Mr. Tidey who accompanied Mr. Gruber outside his home to the roadside, and that it was he whom Mr. Chambers saw striking Mr. Gruber.

[34] Respectfully, the whole of the evidence provides sufficient basis to infer that Mr. Tidey who followed Mr. Gruber outside and subsequently attacked him. This evidence includes the following:

• Mr. Chambers heard the attacker shouting threats at the victim to get out of his house, and that he would call the police. Mr. Gruber remembered Mr. Tidey screaming at him to get out of his house.

• Mr. Gruber was backing out of the house while Mr. Tidey approached him. He remembers turning toward the exit to leave the building while Mr. Tidey was behind him.

• The period of time during which Mr. Gruber sustained memory loss is consistent with the time that Mr. Chambers witnessed the assault.

• Mr. Chambers described the victim as a man with shoulder-length hair, pulled back into a ponytail. Mr. Gruber stated he always keeps his hair pulled back in this manner.

[35] The whole of the evidence leads to the reasonable inference that Mr. Tidey attacked Mr. Gruber outside of the house. As such, the preliminary inquiry judge erred in failing to consider the cumulative effect of all of the evidence.

Did the Preliminary Inquiry Judge Considered Evidence in Isolation?

[36] A preliminary inquiry judge errs when he considers evidence without regard to its context, and the totality of the evidence. Hill, J. commented in Coke at para. 9:

The justice is obliged to consider the cumulative effect of the evidence said to point toward guilty 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 to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence.

[37] In the following excerpt, the preliminary inquiry judge considered evidence in isolation when he stated:

…the prospect of there being more than one person with an animus toward Mr. Gruber may seem remote but it is incumbent on the Crown to call some evidence that places Mr. Tidey at the outdoor scene of the alleged offence, and some evidence that Mr. Gruber’s injuries were caused by an assaulter there.

[38] The preliminary inquiry judge was considering the evidence of Mr. Chambers in isolation from the cumulative effect that all of the evidence has in placing both Mr. Gruber and Mr. Tidey outside. The preliminary inquiry judge was evaluating the probative force of what Mr. Chambers may or may not have seen in a manner that disregarded all of the other evidence. The context and totality of the evidence indicates that it is reasonable to infer that Mr. Chambers did see Mr. Gruber being assaulted outside, and that Mr. Tidey was the assailant. When the total and cumulative effect of the evidence can support an inference of guilt, the accused must be ordered to stand trial. A rational explanation for the evidence, other than the guilt of the accused, is irrelevant.

Conclusion

[39] I conclude that the preliminary inquiry judge exceeded his jurisdiction because: a) he evaluated the evidence of Mr. Chambers in isolation, rather than considering the evidence as a whole; and b) he weighed competing inferences rather than resolving a reasonable inference in favour of the Crown.

[40] The application for an order of mandamus with certiorari in aid requesting an order to quash the discharge of Andrew Tidey on the charge of aggravated assault is granted.

[41] This matter shall be remitted to the preliminary inquiry judge requiring him to commit Andrew Tidey for trial on the charge of aggravated assault contrary to s. 268 of the Criminal Code of Canada.

VALLEE J.

Released: February 24, 2015