ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
KEON BRYCE
Paul Zambonini and Andrea MacGillivray, for the Crown/Applicant
Jennifer Myers, for the Respondent
HEARD: October 26, 2015
REASONS FOR JUDGMENT
M. Dambrot J.
1Keon Bryce was one of four young persons accused of murdering Yusef Ahmed on August 12, 2013. During the preliminary inquiry into the charge of first-degree murder, the Crown stayed the charge against one of the accused, and two of them, Yasan Abdulle and Michael Monney, consented to an order that they stand trial. As a result, at the conclusion of the preliminary inquiry, the presiding judge had only to determine whether or not Bryce should be ordered to stand trial. After hearing evidence spread over eight days between February 4, 2015, and March 12, 2015, hearing the submissions of counsel on March 12, 2015, and adjourning to consider the matter on March 13, 2015, the preliminary hearing judge discharged Bryce in brief oral reasons. The Crown brings this application for an order quashing the discharge of the respondent and an order directing the preliminary hearing judge to order him to stand trial.
2It is the position of the Crown that there was sufficient evidence to order the accused to stand trial on a charge of first-degree murder, and that the preliminary inquiry judge committed jurisdictional errors in discharging the accused. Specifically, he failed to consider the whole of the evidence, and he decided issues reserved for the trier of fact at trial.
3At the conclusion of the hearing of this application, I ordered that the discharge of the respondent be quashed, and that the matter be remitted to the preliminary inquiry judge together with an order requiring him to order the respondent to stand trial on a charge of first-degree murder. These are my reasons.
THE EVIDENCE
4Bryce, Abdulle and Monney were all residents or former residents of a housing complex on Tandridge Crescent, which is across a golf course from the Albion complex where the killing took place. At the time of the killing, the Tandridge and Albion complexes each had video cameras installed in many locations. In addition, surveillance cameras had been installed surreptitiously in the area by the police. The case against Bryce consists largely of video footage recorded on August 12, 2013, showing the movements of the accused, Abdulle, Monney and others in the hours leading up to, during and immediately after the shooting. The pertinent video evidence recorded events largely in four locations: outside Mr. Monney’s home in Tandridge; inside the parking garage at Tandridge; through a gap in the fence surrounding the golf course adjacent to Mr. Monney’s home; and in a parking lot at 236 Albion Rd.
5Starting at the end, based on video surveillance and the evidence of Emmanuel Ansah, it is undisputed that on August 12, 2013, a black Audi driven by Ansah entered the parking lot of 236 Albion Rd. Yassin Abdulle and Michael Monney were passengers in the car. After the car entered the lot, Monney and Abdulle got out of the car. Mr. Ahmed was shot in the neck and died. Abdulle and Monney ran back into the car. The car sped out of the parking lot at 3:02 p.m. One or more handguns were used in the shooting. This evidence alone clearly implicates Abdulle and Monney in the killing. The evidence implicating Bryce must be found in earlier events, if at all. I will summarize a few of the key events.
6On August 12, 2013, Abdulle arrived at Monney’s townhouse at 2:05 p.m., left at 2:10 p.m. and returned at 2:20 p.m. Monney and others were outside the townhouse in the yard at the time. Seconds after he returned at 2:20 p.m., Abdulle left again and entered the underground parking garage. He approached a parked vehicle in the garage that was registered to Monney and had a flat tire. Only part of the vehicle is visible in the surveillance video, but Abdulle can be seen looking underneath the vehicle and in one of the wheel wells. At 2:23 p.m. he left the vehicle, apparently empty-handed, and, based on telephone records, it seems clear that he called Bryce twice, at 2:24 p.m. and 2:25 p.m. He then returned to Monney’s townhouse and spoke briefly with Mr. Monney.
7At 2:28 p.m., Monney left his front yard, entered the garage and approached the same vehicle. He left the garage at 2:31 p.m. and returned to his townhouse and met with Abdulle. Based on the surveillance evidence and phone records, it seems clear that Abdulle then called Bryce twice more, at 2:32 p.m. and 2:33 p.m.
8At 2:40 p.m., shortly after receiving these additional calls from Abdulle, Bryce entered the parking lot and approached the same car. He was wearing a backpack. He was at the car for approximately thirty seconds. At 2:42 p.m., he left the garage, proceeded directly to Monney’s townhouse, and met up with Abdulle. Bryce took his backpack off while walking towards the front door, with Abdulle beside him. While standing in an alcove facing the townhouse, and with their backs to the surveillance camera, Bryce appeared to go into his backpack. Something was then exchanged between the two men, following which Abdulle fixed his hoodie and pants and touched around his waist as if he was secreting something in his waistband. Bryce then walked to a townhouse to the west of Monney’s townhouse and threw his backpack, now apparently empty, through an open second story window.
9At 2:43 p.m., immediately after the transaction between Abdulle and Bryce, Monney and Abdulle left the front of Monney’s townhouse on foot with a third man and entered the golf course through a hole in the fence, in the direction of 236 Albion Rd. A few minutes later they returned to the townhouse and met Emmanuel Anseh, who had just arrived. Anseh then drove Abdulle and Monney to 236 Albion Rd., where Abdulle and Monney allegedly immediately executed Ahmed. Three shots were fired during the shooting, but only one of the shell casings recovered at the scene of the shooting was suitable for comparison. The murder weapon or weapons were never recovered. The murder took place 18 minutes after Bryce allegedly gave the gun to Abdulle.
10After the murder, the police searched Mr. Monney’s vehicle, and found that it contained a quantity of ammunition of two different types. Neither type matched the casing recovered from the scene that was suitable for comparison.
THE REASONS
11I turn next to the reasons of the preliminary inquiry judge to explain the discharge of the accused. It is necessary in this case to review the reasons in some detail in order to analyze the errors said to have been made by the preliminary inquiry judge.
12The preliminary inquiry judge began his reasons by noting that the tests for committal and his duties were so well settled that they required no comment from him, and alerting the reader that his reasons should be read together with the submissions of counsel. He then purported to recite the Crown’s theory:
Mr. Bryce went to Mr. Monney’s parked car in the underground garage to retrieve the murder weapon, that is, a handgun, then went to Mr. Monney’s backyard and took something out of his backpack and gave it to Mr. Abdulle. Mr. Abdulle and Mr. Monney, in due course, got a ride to the murder scene and shot and killed Yusef Ahmed, execution style.
13The preliminary inquiry judge then proceeded to briefly outline the evidence. He began by noting that Bryce, Monney and Abdulle were members of a gang involved with drugs, firearms, ammunition and killings, and other criminal activity. He said that it would be reasonable to conclude that the three men had access to firearms and ammunition. Mr. Monney’s parked car had a flat tire and contained ammunition, and it would be reasonable to conclude that it was involved in the criminal activity of these gang members.
14After noting several things that were not established by the evidence, the preliminary inquiry judge noted that Mr. Ansah drove Monney and Abdulle to the murder scene. He added what was obviously missing from his early recitation of the Crown’s theory: “[T]hat Mr. Bryce gave the handgun or a loaded handgun to Mr. Abdulle and that he knew that it was going to be used to commit a murder. … He was, therefore, a party to the murder.” He then stated, “The heart of the Crown’s case is the delivery of the handgun or the loaded handgun. The Crown submits that I can reasonably infer this fact from the evidence.”
15The preliminary inquiry judge then continued his recitation of the evidence. He mentioned that within 40 minutes prior to the shooting, Abdulle, Monney and Bryce, in that order, all visited Monney’s parked car. He stated, “They must be looking for something, but we do not know what because the surveillance video does not capture any of this.”
16He next noted that Monney had a phone in his hand, that Bryce used a phone on the way out of the parking lot, and that Bryce had a backpack on his back. Bryce, he said, then went to Monney’s backyard and greeted people there, including a couple of unidentified people. He did not note phone calls made or the coincidence of the timing of records.
17He next noted that Bryce took off his backpack and walked over to Abdulle. While their backs were to the surveillance camera and fronts faced the house, he observed that from their body motion, it appears that Bryce went into his backpack and gave something to Abdulle, “or vice versa.” Abdulle then fixed his hoodie and pants and touched around his waist. After noting that the video was not very clear, that it was impossible to see “exactly what happened here”, he said the following:
No object is visible. It could have been anything or probably something illegal because of the way it was done. Mr. Abdulle’s loose-fitting clothes, including a hoodie with pockets in front, covered up anything that was in his pockets or around his waist, if anything at all. We do not know if what Mr. Bryce gave Mr. Abdulle was from Mr. Monney’s parked car. We do not know if Mr. Bryce received anything from Mr. Abdulle. We do not know if Mr. Abdulle already had a gun. We do not know if Mr. Monney, himself had a gun.
18The preliminary inquiry judge then went on to note that after the exchange between Bryce and Abdulle, Abdulle and Monney and another man walked towards a golf course adjacent to the housing area and went through a hole in the fence. He said that Mr. Monney, partially obscured by bushes, “can be seen doing something with his right arm and hand around his waist.” He then said:
Is it possible that he has a handgun? If he does, does it mean that Mr. Abdulle does not have one? If so, what was that earlier interaction between Mr. Bryce and Mr. Abdulle all about? Or did they both have handguns? We do not have answers to any of these questions. It would be speculation to conclude one way or the other. [Emphasis added.]
19He then turned his mind the ammunition seized from Monney’s car and the casing found at the murder scene, and said:
Since the casing … is different from the ammunition … how can the murder weapon be possibly connected to the car and to Mr. Bryce’s actions? What if Mr. Abdulle and Mr. Monney had no gun at all and they were doing a drug deal which went wrong and the deceased had the gun and they overpowered him and shot him?
20The preliminary inquiry judge then mentioned that at the time the three young men were going to Mr. Monney’s parked car, there were phone calls. He commented:
Absent the content of these phone calls, it is not possible to make a reasonable inference that they were about handguns or murder. The use of cell phones by young people is a very common thing and does not by itself prove criminality. [Emphasis added.]
21The preliminary inquiry judge then stated that he had reviewed the various videos about twenty times and added:
I cannot say that the Crown’s theory is supported by the evidence, even if taken at its highest. Without evidence, the conclusion that the Crown wishes me to reach is merely speculation.
22Finally, he concluded:
Many other questions could surely be asked on the evidence simply because there is nothing concrete to anchor a reasonable scenario. In other words, there is no evidence from which a reasonable inference can be drawn to support the Crown’s theory. On the evidence, I cannot make the reasonable inference required of me from which a reasonable jury could infer guilty. In other words, the actions of Mr. Bryce and the totality of the evidence [do] not connect him to the murder or that he has knowledge of the murder or the handgun that was used. [Emphasis added.]
23In the result, the preliminary inquiry judge discharged the respondent.
ANALYSIS
24I propose to answer the following three questions:
Was there sufficient evidence before the preliminary inquiry judge to order the respondent to stand trial for first-degree murder, or an included offence?
If so, did the preliminary inquiry judge commit a jurisdictional error in discharging the respondent?
If so, what remedy should be given?
25I begin as I have just outlined because if there is no evidence fit to go to a jury in this case, then that will end this matter. There would be no point in considering whether or not the preliminary inquiry judge committed a jurisdictional error.
The Sufficiency of the Evidence
26It is not necessary in this case to recite the elements of the offence of first-degree murder. It is sufficient to say that if Bryce delivered a gun to Abdulle knowing that Abdulle and Monney had a plan to commit a murder with it, and intending that they use the gun to commit that murder, then it would be open to the trier of fact to find him guilty of first-degree murder. In this case, I am satisfied that there was evidence before the preliminary inquiry judge that would permit a properly instructed jury, acting reasonably, to reach that conclusion.
27Based on the evidence I have outlined, it would be open to the jury to conclude that:
Abdulle and Monney were looking for something under Monney’s car;
The car was used by the gang that Abdulle, Monney and the accused belonged to, to store ammunition and likely firearms;
When Abdulle and Monney couldn’t locate what they were looking for, they turned to Bryce;
When Bryce’s telephonic assistance proved not to be helpful, Bryce recovered what Abdulle and Monney were looking for and immediately turned it over to Abdulle; and
Having regard to the foregoing - and to the surreptitious nature of the exchange between Abdulle and Bryce, Abdulle’s apparent secreting of what he was given in his waistband consistent with it being a gun, Bryce’s immediate disposal of his apparently empty briefcase, the immediate departure of Abdulle and Monney, and their execution of Ahmed a mere 18 minutes later - a trier of fact could readily conclude that Abdulle and Monney wanted a gun to carry out a plan to commit a murder, that Bryce supplied the gun, and that Bryce knew about the plan and adhered to it.
Jurisdictional Error
Insufficient evidence or no evidence
28It is plain from what I have said that in my view the preliminary inquiry judge erred; there was evidence before him upon which a reasonable jury properly instructed could return a verdict of guilty on the charge of first-degree murder: see United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067; and R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21. But that alone does not permit me to interfere with the result on certiorari. I am permitted to interfere only if the preliminary inquiry judge made a jurisdictional error: see R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 14. Where a preliminary inquiry judge determines that the evidence is insufficient to order an accused to stand trial, the mere fact that the reviewing judge is of the view that the evidence is sufficient is not the basis for finding a jurisdictional error. On the contrary, a preliminary inquiry judge’s determination of sufficiency is entitled to the greatest deference: see R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48. As a result, I have set out the reasons of the preliminary inquiry judge in detail in order to determine if my disagreement with him relates merely to sufficiency.
29But in this case, as I read his decision, the preliminary inquiry judge concluded that there was no evidence before him upon which a reasonable jury properly instructed could return a verdict of guilty rather than merely insufficient evidence. The distinction is admittedly a fine one, but it finds support in the case law. In R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at p. 693, McLachlin J. as she then was, dissenting on other grounds, adopted the following passage from Ryder v. Wombwell (1868), L.R. 4 Ex. 32, at p. 39:
It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the judge ... is ... not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.
30As a result, where the preliminary inquiry judge wrongly concludes that there is no evidence of an element of the offence charged, or no evidence upon which the accused can be ordered to stand trial, as contrasted with insufficient evidence, the error is jurisdictional. This is made clear in the judgment of the Supreme Court of Canada in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 625, at para. 24, where the Court stated:
While this Court held in Russell, supra, at para. 48, that “a preliminary inquiry judge’s determination of sufficiency is entitled to the greatest deference”, I do not think the issue here has anything to do with “sufficiency”. The preliminary inquiry judge flatly stated, “I find that there is absolutely no evidence of non-consent, in either words or actions.”
31That is this case. In this case, as I have noted, the judge said, “I cannot say that the Crown’s theory is supported by the evidence, even if taken at its highest. Without evidence, the conclusion that the Crown wishes me to reach is merely speculation.” In my view, this is not a conclusion that the evidence is insufficient. This is a conclusion that the Crown adduced no evidence that supports the charge against the accused. If there is any doubt about the meaning of this statement, I turn to what the judge said shortly after: “In other words, there is no evidence from which a reasonable inference can be drawn to support the Crown’s theory” (emphasis added).
32I am inclined to the view that I need go no further in these reasons. Being of the view that there was sufficient evidence to order the accused to stand trial, and faced with a determination by the preliminary hearing judge that there was “no evidence”, I find that there was jurisdictional error. The Court in Sazant, immediately after making the comment I have just quoted, continued, at para. 25:
Accordingly, there seem to be three possible interpretations of what the preliminary inquiry judge did, any of which would result in a loss of jurisdiction.
33Then after outlining the three possibilities, the Court concluded, at para. 26:
Accordingly, however his reasons are interpreted, the preliminary inquiry judge misconstrued the nature of his task under s. 548 of the Criminal Code and, by discharging the accused on that basis, he exceeded his jurisdiction.
34I take from this that once a preliminary inquiry judge concludes that there was no evidence of an offence, as contrasted with insufficient evidence, when in fact there was evidence, then the judge has misconstrued the task assigned to him or her and has made a jurisdictional error, and it is not necessary to determine precisely how that came about. Indeed, the Court in Sazant did not determine precisely how the jurisdictional error came about. The Court simply identified the three possible errors that the judge might have made that led him to his erroneous conclusion and deprived him of jurisdiction.
35In support of my understanding of Sazant, I note that in approaching the issue of jurisdiction as it did, the Supreme Court place reliance on the decision of the Ontario Court of Appeal in R. v. Campbell (1999), 1999 CanLII 2372 (ON CA), 155 O.A.C. 143 (C.A.). The Court stated, at para. 23:
In R. v. Campbell (1999), 1999 CanLII 2372 (ON CA), 155 O.A.C. 143, a panel of the Ontario Court of Appeal consisting of Weiler, Abella, and Goudge JJ.A. in a per curiam opinion noted at para. 7:
As Campbell, J., said in R. v. McIlwain (1988), 67 C.R. (3d) 397 (Ont. H.C.), at 399, the preliminary hearing is not the forum for weighing competing inferences or for selecting from among them. That is the province of the trier of fact at trial. In R. v. Dubois, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366 ..., Estey, J., made it clear that it is jurisdictional error for a preliminary hearing judge to enter upon this province. He put it this way at [380]:
“In applying the wrong test for sufficiency, a preliminary inquiry judge does not commit jurisdictional error. In deciding an issue reserved to another forum, however, he does.”
36The Supreme Court could hardly have failed to notice that two paragraphs earlier in Campbell, at paras. 4-5, the Court of Appeal approved of the motion judges’s statement that in his opinion “the learned preliminary hearing judge clearly exceeded his jurisdiction in concluding on the evidence before him that ‘there is no evidence any of these accused were even present when the deceased was shot.”
37But if I am wrong, and more is required to show jurisdictional error than a wrong conclusion that there was no evidence to support an order to stand trial, or if I am wrong in thinking that the preliminary inquiry judge actually meant to say that there was “no evidence” in this case, then the requirement to identify a specific jurisdictional error is easily met here.
38Returning to Sazant, the three circumstances identified by the Court in which a preliminary inquiry judge commits an error that deprives him or her of the jurisdiction to discharge an accused are: (1) where the judge misunderstands the elements of the offence and so proceeds to consider the evidence on an entirely erroneous basis in law; (2) where the judge prefers an inference favourable to the accused over an inference favourable to the Crown, thereby deciding an issue reserved for the trier of fact; and (3) where the judge fails to consider the whole of the evidence.
39In this case, the preliminary inquiry judges’s reasons make plain that he committed both the second and the third error.
Failure to consider the whole of the evidence
40I begin with the third jurisdictional error, a failure to consider the whole of the evidence. Of course, this error is not made out simply because the judge does not list all of the evidence. But neither can a judge inoculate a discharge from review by the simple expedient of reciting all of the relevant evidence. After all, the duty of the preliminary inquiry judge is not simply to be aware of the whole of the evidence, but to consider it – in other words, to relate it to the live issues. Major J. put it this way in R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, the companion decision to Sazant, at para. 34:
It is now plain from Canadian jurisprudence that a trial judge is not required to give extensive reasons for a decision, but is bound to indicate what he or she understands the nature of the case to be so that the parties are aware that the case they argued was the one decided: see Sheppard, supra. Similarly, a preliminary inquiry judge is not required to render extensive reasons but must demonstrate that he or she met the statutory and mandatory duty to consider the whole of the evidence. It hardly needs saying that had the proceedings been a trial and not a preliminary inquiry, an acquittal of the respondent for the reasons given by Serré J. not to commit would likely be sustained. However, the mandatory duty imposed on the judge at a preliminary inquiry to consider the whole of the evidence requires some clear indication that this obligation was met. In my view, the reasons at issue here do not satisfy this requirement
41In a circumstantial case, as Durno J. noted in R. v. Papadopoulos, 2004 CanLII 20535 (ON SC), at para. 184, “[C]ircumstantial evidence cannot be examined piecemeal. The cumulative effect of the evidence must be examined.” In that case, Durno J. did not need to determine whether the piecemeal examination of circumstantial evidence was a jurisdictional error. But I do need to make that determination, and I conclude that it is. In my view, when a preliminary inquiry judge makes the error of analyzing and rejecting pieces of circumstantial evidence in isolation, without ever considering their potential force when viewed together and as a whole, such an error is an example of failing to consider the whole of the evidence and is jurisdictional.
42In such a case, by inappropriately removing pieces of evidence from the mix, even if the judge purports to have considered the whole of the evidence, he or she will not in fact have done so. Where a preliminary inquiry judge fails to consider the cumulative effect of circumstantial evidence, and as a result wrongly concludes that there was no evidence, or even insufficient evidence to justify an order to stand trial, he or she has committed jurisdictional error by failing to consider the whole of the evidence.
43Admittedly the case law on this point is not extensive, but what law there is consistently supports the view that the piecemeal evaluation of evidence is a jurisdictional error.
44I begin with R. v. Boone, 2012 ONCA 539. In her dissenting judgment, Simmons J.A. identified the main issues on appeal as follows: (i) whether the certiorari judge erred in holding that the preliminary inquiry judge exceeded his jurisdiction in discharging the appellant on the attempted murder counts; and (ii) whether the certiorari judge erred in upholding the committals on the sexual assault and breach of probation charges.
45With respect to the attempted murder counts, she said, at para. 32:
In this case, in my view, the preliminary inquiry judge committed jurisdictional error both by: i) considering the evidence in a piecemeal fashion and making findings without considering the whole of the evidence; and ii) going beyond the limited weighing of inferences permissible at the preliminary inquiry stage.
46Although the judgment of Simmons J. A. was in dissent, the remaining members of the Court agreed with her in respect of the attempted murder counts. Hoy J.A., as she then was, stated, at para. 102, “I agree with my colleague Simmons J.A.’s analysis and conclusion with respect to the attempted murder charges.”
47This is consistent with two earlier judgments of the Court of Appeal. In R. v. Charles, 2008 ONCA 237, the Court stated, at para. 3, “We are, however, satisfied that the Superior Court judge was correct in concluding that the preliminary inquiry judge considered the evidence in isolated segments rather than as a whole…. This is jurisdictional error.”
48Similarly, in R. v. Muir, 2008 ONCA 608, the Court stated, at para. 1:
In our opinion, although the preliminary inquiry judge correctly cited the test for committal and reviewed all of the evidence in conducting the limited weighing of the evidence he was required to do, he dealt with the evidence on a piecemeal basis. He did not come to his conclusion on the whole of the evidence. For example, in concluding that the flight of the appellant could not give rise to an inference of guilt the preliminary inquiry judge appears to have chosen among competing inferences in the evidence and set that evidence aside. He did not consider the particular piece of evidence along with all the other evidence as a whole. This was a jurisdictional error.
49The error made in both Charles and Muir is precisely the error made here. The preliminary inquiry judge isolated pieces of circumstantial evidence and reached conclusions about them without regard to the whole of the evidence. He examined each of the links in the chain of reasoning in the Crown’s theory and removed them from consideration one by one. As I have said, engaging in such a piecemeal analysis is not the appropriate way to consider circumstantial evidence. Circumstantial evidence must be taken as a whole and its cumulative effect considered when making an assessment of the reasonableness of the inferences to be drawn from it.
50By way of example, I turn to the first link in the Crown’s chain of reasoning rejected by the trial judge: the fact that within 40 minutes before the shooting, Abdulle, Monney and Bryce, in that order, each visited Monney’s parked car, and were seen searching about the car. Of course, viewed in isolation, this evidence cannot support any inference of Bryce’s involvement in the offence.
51However the Crown argues that when this conduct is seen in context, inferences can be drawn that Bryce is part of a plan to put a gun into the hands of Abdulle and Monney, a crucial step in implicating him in the murder. The Crown argues that what was going on here was that first Abdulle and then Monney tried to find the gun secreted somewhere under the vehicle in order to carry out the plan to execute Ahmed. When Abdulle failed to locate the gun, Bryce was called to secure his advice and assistance. When Monney failed to locate the gun, Bryce was called again. Bryce, who played a part in the plan, came and retrieved the gun himself, and then delivered it to Abdulle.
52The trial judge considered the evidence about the visits to the car in isolation, and found that it had no significance. He stated, “They must be looking for something, but we do not know what because the surveillance video does not capture any of this.”
53Of course, it was not the duty of the preliminary inquiry judge to determine what the three men were looking for, a matter that I will return to later, but only to consider the inferences that a jury might draw. But in any event, the determination of whether or not an inference is available to the trier of fact that the three men were looking for a firearm, and that when they turned to Bryce he found it for them, must be informed by what went before and what came after. This includes the following evidence:
All three men were members of a gang that was involved with drugs, firearms, ammunition and killings;
As a result of their gang membership, the three men had access to firearms and guns;
The vehicle in question, which belonged to Monney, was later searched, observed to be immobilized by a flat tire and found to contain a significant quantity of ammunition, consistent with its use to store firearms and ammunition by gang members;
When Abdulle and Monney searched around the vehicle, they apparently found nothing;
After each failed search around the vehicle, the men’s lack of success was quickly followed by phone calls to Bryce, consistent with knowledge on their part that Bryce knew where the thing being searched for was;
When Bryce went to the car, he apparently found what Abdulle and Monney were looking for, again consistent with knowledge on his part of where it was;
Bryce immediately walked over to Abdulle and Monney;
Abdulle and Bryce then moved to a location concealed from the surveillance cameras;
Bryce appeared to take something from his knapsack;
Something surreptitiously passed between Bryce and Abdulle;
Immediately after something passed between Bryce and Abdulle, Abdulle fixed his hoodie and pants and touched around his waist as he would if he were concealing a firearm;
Bryce then disposed of his backpack, which obviously now contained nothing of weight or value, by tossing it into a second story window;
Shortly after something passed between Abdulle and Bryce, Abdulle and Monney drove to the place of the killing and immediately executed Ahmed with a firearm; and
The killing took place within 18 minutes of the exchange between Bryce and Abdulle.
54This list is not exhaustive of the circumstances supporting an inference that the Abdulle and Monney were each searching for a firearm, and that when they could not find it Bryce got it for them. Undoubtedly one can also point to a few items of evidence that may not so neatly fit the picture I have just drawn. But they do not undermine the potential force of the circumstances that do. All of the circumstances will be before the jurors for their consideration. It seems to me that had the preliminary inquiry judge considered the evidence of the three men searching around the vehicle in the context of the whole of the evidence, and examined the cumulative effect of that evidence, he would have concluded that an inference was available that Abdulle and Monney were searching for a firearm, and that Bryce retrieved it for them. By engaging in a piecemeal analysis of this evidence when assessing the reasonableness of the inferences that may be drawn without examining the evidence as a whole and considering its cumulative effect, the judge deprived himself of jurisdiction.
55The same flaw is found in each of his other conclusions about inferences that might be available. Most importantly, it infected his conclusion about the exchange between Bryce and Abdulle. On this issue, he stated that it was impossible to see “exactly what happened here” and then said, in reference to the video:
No object is visible. It could have been anything or probably something illegal because of the way it was done. Mr. Abdulle’s loose-fitting clothes, including a hoodie with pockets in front, covered up anything that was in his pockets or around his waist, if anything at all. We do not know if what Mr. Bryce gave Mr. Abdulle was from Mr. Monney’s parked car. We do not know if Mr. Bryce received anything from Mr. Abdulle. We do not know if Mr. Abdulle already had a gun. We do not know if Mr. Monney, himself had a gun.
56Once again, he assessed whether or not an inference could be drawn that a gun passed from Bryce to Abdullah by looking at the circumstances of the exchange as disclosed by the video in isolation. He did not consider the video in the context of the totality of the evidence. He did not examine the cumulative effect of that evidence. If he had, he undoubtedly would have concluded that an inference was available that Bryce passed a gun to Abdulle. Once again, he made a jurisdictional error.
57It is true that at the very end of his reasons, the preliminary inquiry judge said:
In other words, the actions of Mr. Bryce and the totality of the evidence does not connect him to the murder or that he has knowledge of the murder or the handgun that was used.
I, therefore, must discharge Mr. Bryce. [Emphasis added.]
58If this passage is viewed in isolation, it might appear that in the end, the preliminary inquiry judge did in fact examine the totality of the evidence in reaching his conclusions. But his examination of the totality of the evidence must be seen in light of his earlier treatment of the individual parts of the evidence. By depriving each piece of evidence of its potential force by examining it piecemeal and effectively discarding it, his reference to the totality of the evidence cannot mean that he truly considered the whole of the evidence. The fact remains that nowhere in his reasons did he ever consider any particular piece of evidence in the context of the other evidence as a whole.
59In the end, this case bears a strong resemblance to Muir. As in Muir, at para. 1:
[A]lthough the preliminary inquiry judge correctly cited the test for committal and reviewed all of the evidence … he dealt with the evidence on a piecemeal basis. He did not come to his conclusion on the whole of the evidence. … He did not consider [any] particular piece of evidence along with all the other evidence as a whole. This was a jurisdictional error.
60As a result, I conclude that by discharging the accused on the basis of a piecemeal review of the evidence rather than a review of the whole of the evidence, the preliminary inquiry judge committed jurisdictional error.
Deciding an issue reserved for the trier of fact
61I turn next to the second jurisdictional error mentioned in Sazant: where the judge prefers an inference favourable to the accused over an inference favourable to the Crown, thereby deciding an issue reserved for the trier of fact. I conclude that in this case, the preliminary inquiry judge did exactly that. He preferred several inferences favourable to the accused over inferences favourable to the Crown, thereby deciding issues reserved for the jury.
62I begin by noting a comment made by the preliminary inquiry judge at the very end of his reasons, immediately after he concluded that there was no evidence from which a reasonable inference could be drawn to support the Crown’s theory. He then said, “On the evidence, I cannot make the reasonable inference required of me from which a reasonable jury could infer guilty. In other words, the actions of Mr. Bryce and the totality of the evidence [do] not connect him to the murder or that he has knowledge of the murder or the handgun that was used.” I acknowledge that this comment is somewhat opaque, and may be nothing more than the judge misspeaking. But it seems to me that it reflects confusion about his role. He seems to be determining the inferences he would draw from the evidence instead of the inferences that are open to the jury to draw. If this comment stood alone, I acknowledge that I would not consider it determinative. But it is joined by a number of other comments throughout the reasons that confirm that the preliminary inquiry judge exceeded his jurisdiction on this ground as well.
63By way of example, when discussing the telephone calls made to Bryce after each of Abdulle’s and Monney’s searches under the car, he said that absent the content of the phone calls, it is not possible to infer that they were about guns or murder. He continued, “[T]he use of cell phones by young people is a very common thing and does not by itself prove criminality.”
64In addition to the obvious point that this is another example of considering a piece of circumstantial evidence in isolation, it is also an example of confusing his role with the role of the jury. It would be open to the jury to conclude that the innocent use of cell phones by young people is common, and that this common use could deprive the suspiciously timed calls of their potential force. However, it was not for the preliminary inquiry judge to come to this conclusion.
65Similarly, when commenting on his review of the video of the interaction between Abdulle and Bryce, the preliminary inquiry judge stated, “I cannot say that the Crown’s theory is supported by the evidence, even if taken at its highest. Without evidence, the conclusion that the Crown wishes me to reach is merely speculation.” Of course, the Crown asked him to reach no conclusion about what passed between Abdulle and Bryce. The Crown asked the preliminary inquiry judge only to recognize that when the jurors viewed all the evidence cumulatively, including the video, it would be open to them to conclude that Bryce was passing a gun to Abdulle.
66As a result, I conclude that the preliminary inquiry judge committed the additional jurisdictional error of deciding issues reserved for the trier of fact.
Remedy
67I turn finally to the question of remedy. I have concluded that the preliminary inquiry judge made jurisdictional errors in discharging the respondent on the charge of first-degree murder. As a result, the discharge is quashed. I am further satisfied that if this matter were remitted to the Ontario Court of Justice for reconsideration, the only legally possible result would be an order that the respondent stand trial on the charge of first-degree murder. However, despite the fact that an order to stand trial is inevitable, I do not have the power to make such an order on certiorari: see R. v. Thomson (2005), 2005 CanLII 8664 (ON CA), 74 O.R. (3d) 721 (C.A.). But since an order to stand trial is inevitable, an order of mandamus is available, requiring the preliminary inquiry judge to order the respondent to stand trial on a charge of first-degree murder. In this case, I will make such an order.
DISPOSITION
68An order will go quashing the discharge of Bryce on a charge of first-degree murder, remitting the matter to the preliminary inquiry judge, and requiring him to order Bryce to stand trial on a charge of first-degree murder.
M. Dambrot J.
RELEASED: November 13, 2015
COURT FILE NO.: CR-15-50000077
DATE: 20151113
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
KEON BRYCE
REASONS FOR JUDGMENT
DAMBROT J.
RELEASED: November 13, 2015