Court File and Parties

COURT FILE NO.: 13-SA 5060 DATE: 2016/07/20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – LESLIE FRANCIS PATROIS Respondent

COUNSEL: Moiz Karimjee, for Applicant Dominic Lamb, for the Respondent

HEARD: July 13, 2016

Reasons for Decision

MARANGER J.

[1] This was a Crown application for a writ of certiorari and mandamus in relation to a ruling of Justice Robert Fournier dated June 18, 2015 whereby he discharged the accused Leslie Francis Patrois on Count five of information 13-SA 5060. The accused was committed to stand trial by the preliminary inquiry judge on six other sexual offences.

[2] At the commencement of the preliminary inquiry the accused also faced four charges of anal intercourse. These four counts were discharged for want of jurisdiction as the evidence disclosed that the events took place in the province of Québec.

[3] At the close of the inquiry the Crown amended the information to change one count of a charge of anal intercourse to a charge of sexual assault taking place in the province of Ontario and the province of Québec.

[4] The primary inquiry judge did not commit the accused to stand trial on the amended count, stating that it clearly was addressing sexual offences and specifically anal intercourse that took place in the province of Québec.

[5] Is this decision that the Crown seeks to review.

Standard of review for an order of non-committal:

[6] In circumstances where a preliminary inquiry judge does not commit an accused to stand trial a reviewing court can only interfere with that decision where it has been shown that the particular judge committed jurisdictional error in failing to commit the accused. The Supreme Court of Canada so instructed in R v. Deschamplain 2004 SCC 76, [2004] 3 SCR 601 (SCC) at para: 23

23 The jurisprudence of this Court leaves no doubt that a preliminary inquiry judge commits a jurisdictional error by committing an accused for trial under s. 548(1)(a) when an essential element of the offence is not made out: see Skogman v. The Queen, 1984 SCC 22, [1984] 2 S.C.R. 93, at p. 104; Dubois, supra, at p. 376; Russell, supra, at para. 21. 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 under s. 548(1)(b): see Arcuri, supra, at paras. 21-23; Russell, supra, at para. 26. 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 would have reached: see Russell, supra, at para. 19. It is a jurisdictional error, however, for a preliminary inquiry judge to act arbitrarily: Dubois, supra, at p. 377.

[7] In R v. Young [2010] O.J. No. 803 (Ont. CA) the Court indicated as long as the evidence is considered as a whole, even where the preliminary inquiry justice appears to have made an erroneous decision on the evidence, it will not constitute jurisdictional error, and will not be susceptible to review.

Did the presiding judge committed jurisdictional error?

[8] The Crown submits that the presiding judge committed jurisdictional error by failing to commit the accused to stand trial when there was evidence of sexual acts, as amended into count one that had taken place both in Ottawa and in the province of Québec, as established by the authorities.

[9] The law is clear that a criminal offence can start in one province and be completed in another province. The case of a sexual assault against a child can easily begin for example in the province of Ontario and continue in the province of Québec allowing for both places to have jurisdiction over the offence. In fact multiple provinces can have jurisdiction depending on the circumstances of the case. See R v. Bigelow [1982] O.J. no 27 (Ont. CA) paras: 21-22, R v. Sandhu 2009 ONCA 102, [2009] O.J. No. 374 Ont. CA.

[10] The decision of Justice Fournier in the circumstances of this case did not constitute jurisdictional error. His decision was predicated on a finding of an insufficiency of evidence. I disagree with the Crown’s analysis that he committed jurisdictional error in his analysis of the elements of the offence.

[11] In his reasons at pages 76 through 78 he indicates in part the following:

“I’m not persuaded, I’m not of the view that there is enough evidence to support the notion that this sexual assault, count number 5, as amended, was initiated in Ottawa and completed substantially perhaps in Québec. There’s the issue of the grooming, and I have some difficulty with that and I indicated that to counsel early this morning. Anal intercourse doesn’t happen overnight between an adult and a young child. It require some preparation, it requires some grooming, as the expression is commonly used…

Is grooming an element of the offence? Perhaps it is.…

So I’m not satisfied that I have enough evidence here. There’s some evidence but it is pretty tenuous, in my view and there’s case law that says if the evidence is tenuous it amounts to no evidence that this particular count, this particular offence alleged there, was initiated Ontario and then may be fulfilled and carried out in Québec, which could give Ontario jurisdiction. So I’m not persuaded of that, so I will discharge on count number 5 as amended.

[12] My analysis of the preliminary inquiry judges reasons are that he simply found an insufficiency of evidence to support the proposition that the crime alleged began in Ontario and continued in Québec. This does not constitute jurisdictional error and is not susceptible to review. The application is dismissed.

Mr. Justice Robert L. Maranger Released: July 20, 2016