ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CJ 8425
DATE: 2015July6
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Tegh Singh
Applicant
C.N. Jennison, for the Crown
M.M. Persaud, for the Applicant
HEARD: 25 June 2015
Justice J.C. Kent
INTRODUCTION
[1] The applicant seeks an order quashing his committal to stand trial on a charge that:
“knowing that Tanvir Padda has been a party to the offence of Fail to Remain, did assist Tanvir Padda for the purpose of enabling Tanvir Padda to escape, contrary to Section 463(a) of the Criminal Code of Canada”
[2] This court is asked to the review the committal for trial made at the preliminary hearing. The scope of such a review is limited.
[3] It is common ground between counsel, that there must be at least a scintilla of evidence on each essential element of the alleged offence for the committal to be jurisdictionally sound. A judge presiding at a preliminary hearing must commit if there is direct evidence on each essential element of the offence.
[4] If there is only circumstantial evidence on any element of the offence, the judge must engage in some limited weighing of the evidence to determine whether the evidence, if believed, could reasonably support an inference of guilt. See Regina v. Arcuri, 2001 SCC 54, [2001] S.C.J. 52, paragraph 23.
BACKGROUND
[5] The accused was a rear seat passenger in a motor vehicle driven by his cousin when it was involved in a fatal pedestrian accident on the night of 19-October-2013. The cousin, Tanvir Padda, did not stop at the scene and, ultimately, pled guilty to failing to remain causing death. The accused was committed for trial as an accessory after the fact on the charge set out above.
[6] The vehicle driven by Padda was owned by a numbered company controlled by the father and grandfather of the accused, both of whom reside in the same home in Brampton, Ontario. On the night of the accident, the accused drove the damaged vehicle to Brampton, Ontario from the Region of Waterloo and returned it to its regular place in the garage at his father’s home in Brampton.
[7] The judge presiding at the preliminary hearing, described the time between the fatal accident and the driving of the vehicle to Brampton as “immediately after” (twice) and “very shortly” (once).
[8] Those descriptive terms are of questionable accuracy, but they are not determinative of her decision to commit for trial.
CONSIDERATIONS
[9] It is an essential element of the offence that the accused has knowledge that the accident occurred and that Padda failed to remain at the scene. While the evidence on that element may be found by the trier of fact to be unreliable, that is not an issue to be addressed at this stage of the proceeding.
[10] It is an essential element of the offence that the action(s) of the accused have the effect of assisting Padda. The preliminary hearing evidence indicated that there was a gap of 18 days from the accident until the vehicle was located by the police in the garage at the father’s home in Brampton. That period of 18 days delayed the initiation of charges against Padda and is evidence that the action of the accused had the effect of assisting Padda.
[11] It is an essential element of the offence that the assistance provided by the accused be provided for the purpose of helping Padda escape prosecution or liability. The offence is, therefore, one of specific intent.
[12] The crown concedes that on this element, the only evidence is circumstantial and submits that the circumstantial evidence presented lends itself to an inference of the specific intent required. The experienced preliminary hearing judge was alive to this point. At page 10, 11 and 12 of her reasons, she refers to seven pieces of circumstantial evidence that could be considered by the ultimate trier of fact as a basis from which to draw a reasonable inference that the specific intent existed.
ANALYSIS
[13] In his submissions, counsel for the accused suggests that each and every piece of the circumstantial evidence on the issue of specific intent is capable of innocent explanation; a competing inference. That is not the point. If all of the circumstantial evidence on the issue permitted a reasonable inference that the accused had the specific intent required, that is sufficient. See Regina v. Dwyer, 2013 ONCA 368, [2013] O.J. 2554 (C.A.), at paragraph 4:
“Reasonable inferences are not necessarily likely or probable inferences. The inference that is most favourable to the crown must be drawn at the preliminary inquiry stage. Difficult inferences to draw may still none the less be reasonable.”
[14] The inferences drawn by the committing judge were neither unreasonable nor speculative. She had the benefit of 28 pages of written submissions by counsel and she addressed the committal issue with reasons of her own that comprised some 13 pages.
[15] In a further submission, counsel for the accused contended that the committing judge failed to apply the Shephard standard to the totality of the evidence presented. See USA v. Shephard, 1976 SCC 8, [1977] 2 SCR 1067.
[16] It appears, however, that, at page 13 of her reasons, the committing judge did, in fact, apply that test. She stated:
“I would, therefore, find that the crown has presented the evidence on each point including this last point on which a properly instructed jury could reasonably found conviction.”
[17] Counsel for the accused appears to be suggesting that where the crown has a less than solid case and the circumstantial evidence provides a basis for competing reasonable inferences that may assist the accused, there should not be a committal because the probability of a conviction at trial is reduced.
[18] Such a reduced probability may be the case in the present circumstances, but counsel’s proposition is not supported by the law. The Shephard test is worded could return a verdict of guilty, not would return a verdict of guilty.
RESULT
[19] The above considerations and analysis lead me to the conclusion that the committing judge made no error. The applicant’s motion for certiorari to quash the committal order is, therefore, dismissed.
Kent, J.
Released: July 6, 2015
COURT FILE NO.: CJ 8425
DATE: 2015July6
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Tegh Singh
Applicant
REASONS FOR JUDGMENT
Kent, J.
Released: July 6, 2015