ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-3334
DATE: 20151208
BETWEEN:
HER MAJESTY THE QUEEN
– and –
WARREN JEFFERY
Applicant
Dale Ives, for the Federal Crown
Michael H. Gordner, for the Applicant
HEARD: October 22, 2015
RULING ON APPLICATION TO QUASH COMMITTALS
pOMERANCE j.
[1] The applicant, Warren Jeffery, was committed to stand trial on charges of importing cocaine and methamphetamine into Canada, and possessing those substances for the purposes of trafficking. He seeks to quash the committals, arguing that there was no evidence to justify the order of the preliminary inquiry justice. The Crown resists the application, asserting that the evidence was amply capable of supporting inferences of guilt.
[2] The applicant was the co-driver of a truck that was in the United States and that entered Canada with a load of tomatoes, in which cocaine and methamphetamine were secreted. When the truck crossed the border into Canada it was driven by Wayne Rutherford. The applicant was not in the truck at that time, but he had driven the truck for a period of time when it was in the United Sates. The Crown alleges that the applicant and Rutherford were engaged in a joint enterprise to smuggle narcotics across the border for the purposes of trafficking.
THE DECISION OF THE PRELIMINARY INQUIRY JUSTICE
[3] In committing the applicant to stand trial, Marion J. noted that the case against the applicant was “based entirely on circumstantial evidence”. After outlining the evidence called on the proceeding, he stated the following:
The evidence in this case indicates Mr. Jeffery’s presence as a co-driver during a substantial period prior and after loading operations. His cell phone number is on the driver log in the vehicle. He paid for the repairs to the truck at the truck stop and based on the documentary evidence was apparently in sole control of the tractor-trailer while in Sacramento, California.
The evidence tendered at the preliminary hearing is sufficient to infer the two essential elements of possession: knowledge and control of the cocaine and methamphetamine found in the trailer.
[4] On the issue of importing, Marion J. acknowledged that the applicant was not present in the truck when it entered Canada. He found, however, that this did not negate the possibility of an inference of guilt. As he put it:
[5] I’m of the view that Mr. Jeffery exercised a significant role in transporting the contents of the truck and trailer during significant periods of time while in the United States. He exercised during some period of time exclusive control of the tractor – trailer. He had a strong connection to it. He paid for its repairs and he had responsibility with respect to the vehicle under the Highway Traffic Act and its regulations as being a driver. He was often referred to in the driver’s log and, as pointed out, paid for the personal expenses of Mr. Rutherford. His own cell phone number was on the driver’s log found in the truck cabin. The bill of lading identified the destination as Montreal, Canada. It is not unreasonable to infer that he knew that the tractor-trailer was entering Canada.
EXTENSION OF TIME
[6] The applicant was committed to stand trial on February 23, 2015. He did not commence his application for certiorari within the requisite 30 day period. The evidence before the court indicates that the applicant immediately told his preliminary inquiry lawyer that he wished to “appeal” his committal. The lawyer wanted to discuss the issue with other lawyers. He failed to take any timely steps to file an application for review of the committal decision. It was not until May 2015 that the former lawyer spoke with the applicant’s current counsel, Mr. Gordner. On June 10, 2015 the applicant retained Mr. Gordner who acted quickly to notify the Crown of the applicant’s intention to seek an extension of time for the filing of a certoriari application. Shortly thereafter, the application to quash the committal was filed.
[7] I accept that the applicant had a bona fide intention to challenge his committals to stand trial and that this intention was formed within the 30 day period. The applicant’s former lawyer has taken full responsibility for the failure to file an application with the 30 day period. The applicant is not himself responsible for the delay. Nor should the applicant be penalized for the failure of his lawyer to act diligently. There is every reason to believe that the applicant expressed an immediate desire to challenge the committal. Had his lawyer acted on these instructions, he would have been entitled to bring his certiorari application as a matter of right.
[8] In considering an application for an extension of time, the court must also consider the merits of the application. The court must be satisfied that the application is arguable or, stated differently, not frivolous. It is somewhat artificial to consider threshold merit in this decision, which also addresses the ultimate merits of the application. That said, while I have determined that the application for certiorari should be dismissed, I find that the application was not frivolous. It was sufficiently meritorious to warrant the granting of an extension of time.
CERTIORARI: GENERAL PRINCIPLES
[9] It is well settled that the scope of review of a committal (or discharge) flowing from a preliminary inquiry is extremely narrow. In this context, review is strictly limited to errors of a jurisdictional nature. Errors of law (as distinct from errors of jurisdiction) are immune from challenge. The threshold for a finding of jurisdictional error is not easily met. As was observed by Laskin C.J.C. in Forsythe v. The Queen (1980), 53 C.C.C. (3d) 225 (S.C.C.), “the situations in which there can be a loss of jurisdiction in the course of a preliminary inquiry are few indeed.”
[10] Jurisdictional error will arise where a preliminary inquiry justice commits an accused to stand trial in the absence of any evidence on an essential element of the offence. Where the issue is sufficiency of evidence, the determination of the preliminary inquiry justice “is entitled to the greatest deference.” R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 (S.C.C.). The test on review is whether there is some evidence upon which the committing justice could conclude that the test has been satisfied. So long as there is a scintilla of evidence on each element of the offence, the committal is jurisdictionally sound. The reviewing court is not empowered to substitute its own view for that of the committing justice.
[11] Where there is direct evidence on each of the essential elements, the preliminary inquiry justice must commit. “It remains only for the jury to decide who it chooses to believe and what evidence it decides to accept or reject.” R. v. Charemski (1998), 1998 819 (SCC), 123 C.C.C. (3d) 225 (S.C.C.) at para. 22. Where the evidence is circumstantial, the justice must engage in some weighing of the evidence, but only to a very limited extent. As described in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at para. 23:
The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.
[12] In other words, the preliminary inquiry is not the proper forum for weighing competing inferences or for choosing among them. Nor is the justice to consider whether there is a rational explanation for the evidence other than the guilt of the accused. The Crown’s case must be taken at its highest and considered as a whole. If the evidence is reasonably capable of supporting an inference of guilt, a committal must ensue (even if the evidence is also capable of supporting an inference of “non-guilt”). The “crucial distinction” was described by the Supreme Court of Canada in R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at para. 91, “the judge does not draw determinate factual inferences, but rather, comes to a conclusion about the field of factual inferences that could reasonably be drawn from the evidence.”
APPLICATION TO THIS CASE
[13] In this case, there was evidence on which the preliminary inquiry justice could properly commit the applicant to stand trial on charges of importing and possession for the purposes of trafficking. The circumstantial evidence is reasonably capable of grounding verdicts of guilt on all four counts. There is evidence which, if accepted by the trier of fact, would establish the essential elements of the offences beyond a reasonable doubt.
[14] The reasons of the preliminary inquiry justice make clear that he applied the proper test for committal, and considered the salient points in the evidence. He did not exhaustively review every item of evidence, but this is not a requirement.
[15] The applicant argued that the preliminary inquiry justice did not consider the applicant’s cooperation with the police. The applicant provided various items of information and documentation to the police, including certain credit card receipts. The preliminary inquiry justice did not expressly refer to this evidence in his decision, but this does not reflect error. First, this evidence was outlined by defence counsel in his submissions on the very day that the decision was released. The preliminary inquiry justice was clearly aware of it and its potential relevance to the issues. Secondly, and in any event, it is not clear that the applicant’s cooperation in this case is tantamount to positive evidence of innocence. This case is arguably distinguishable from R. v. S.C.B., 1997 6319 (ON CA). Thirdly, even if the evidence of cooperation could be seen as exculpatory, that is just one inference to be drawn. This evidence does not negate the incriminating inferences that are otherwise available in the evidence as a whole.
[16] This leads to the next point, which is the extent to which the evidence as a whole was reasonably capable of grounding inferences of guilt. The case against the applicant consists of circumstantial evidence linking him to the tractor/trailer and to Rutherford. Mr. Gordner, in his argument, acknowledged that the case against Mr. Rutherford, the owner of the truck, is overwhelming. Rutherford was driving the truck at the time it crossed the border. As the owner, he would invariably have known about the false wall and secret compartment in which the drugs were hidden.
[17] While the case is different as against the applicant, a jury could reasonably infer from the evidence that Rutherford and the applicant were acting in concert: that the applicant knew that the truck contained hidden contraband and that it was destined for Canada. The relevant evidence includes the following:
a. The applicant was a co-driver of the vehicle, along with Mr. Rutherford for a period of time while in the United States. The applicant drove his vehicle to the United States where he met up with Rutherford and assumed a position as co-driver. It could be inferred that he was enlisted by Rutherford to serve in this capacity.
b. The applicant was not only a co-driver of the vehicle; he had sole custody of it for a period of time when Rutherford went to Los Angeles. The applicant had a degree of responsibility for, and control over, the vehicle.
c. Given the nature, quantity and value of the illegal cargo, it is open to inference that Rutherford would have likely entrusted it to someone who was an accomplice or, at least, aware of its contents.
d. It is reasonable to infer that the contraband was loaded some time before the boxes of tomatoes were placed in the trailer. The contraband was hidden at the nose of the trailer, behind 1,584 boxes of tomatoes. To hide the drugs after the tomatoes were loaded would have required that the boxes be unloaded and loaded again. The applicant was with the truck when the tomatoes were loaded and for a few days prior to that.
e. The applicant paid for various expenses, such as Rutherford’s Los Angeles hotel bill, and the cleaning of the truck.
f. The bill of lading made it clear that the load was coming to Canada.
[18] It may be that no one of the above factors standing alone would justify committal. However, the combined effect of the evidence is such that inferences of guilt are rationally and legally available.
[19] The applicant was not in the truck when it crossed into Canada. He was listed as a co-driver up until 8 hours before the border crossing. The applicant crossed the border in his own vehicle around the same time that Rutherford crossed the border with his tractor trailer. This does not negate an inference of guilt, given that the applicant had left his own vehicle in the United States when he met with Rutherford, and presumably had to drive it back.
[20] Mr. Gordner argued that committal should only ensue if the inference of guilt is the only rational inference to be drawn. I cannot agree. To my mind, that argument conflates the test for committal with the test to be applied by the ultimate trier of fact. At trial, the applicant can only be convicted if guilt is the only rational inference, based on the findings of fact. By way of contrast, the preliminary inquiry justice does not make findings of fact. He or she is to engage in a limited weighing of the evidence, but is not to usurp the role of the ultimate fact finder. If more than inference is available on the evidence, the preliminary inquiry justice must not choose which inference is correct. To do so is to commit jurisdictional error. So long as an inference of guilt is “within the field of rational inferences” the accused must be committed to stand trial.
[21] Here, the evidence is capable of grounding an inference that the applicant was aware of the presence of the contraband, and that he was aware that it was destined for Canada. If the trier were to draw these inferences, the requisite elements of possession - knowledge and control – would be established as would the intention to import the goods into Canada.
[22] For these reasons, I find that there was evidence before the preliminary inquiry justice upon which he could, acting judicially, form an opinion that the evidence was sufficient to order the accused to stand trial. In these circumstances, no jurisdictional error has been established. I therefore grant the applicant’s request for an extension of time, but the application for a writ of certiorari to quash the committals is dismissed.
Original signed “Pomerance J.”
Renee M. Pomerance
Madam Justice
Released: December 8, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
WARREN JEFFERY
Applicant
RULING ON APPLICATION to
quash committals
Pomerance J.
Released: December 8, 2015