ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen v. David Hodgson
BEFORE: K.L. Campbell J.
COUNSEL: Susan Orlando, for the Crown, applicant
Bradley Funston, for the accused, respondent
HEARD: August 4, 2016
REASONS FOR DECISION
[Certiorari Application]
A. Introduction
1The respondent, David Hodgson, was charged with two counts of sexual assault (against two different complainants) and one count of failing to comply with the curfew condition of his recognizance. The Crown elected to proceed by indictment, and the accused elected to be tried by a court composed of a judge and jury.
2At the conclusion of the preliminary inquiry conducted into these charges, the Honourable Madam Justice Sheila Ray of the Ontario Court of Justice committed the respondent for trial on one count of sexual assault, one count of assault simpliciter, and one count of failing to comply with a recognizance. With respect to the committal for trial on the charge of assault simpliciter, Justice Ray concluded that there was no evidence led at the preliminary inquiry that this assault against the complainant, A.G., was a sexual assault.
3The Crown now challenges, by way of the prerogative writ of certiorari, the decision of Justice Ray to only commit the respondent to trial on the charge of assault simpliciter, instead of the charged offence of sexual assault. The Crown argued that the committing justice committed jurisdictional error in refusing to commit the respondent on the charge of sexual assault. There is no issue raised in relation to the legal propriety of the committal on the other two charges.
B. The Preliminary Inquiry Evidence
4At the preliminary inquiry, the complainant, A.G., testified, essentially, as follows in relation to the charge in question.
5At approximately 11:00 p.m. on April 15, 2015, the complainant was returning home from work. At the time, she was 20 years of age, was just over five feet tall and weighed 115 pounds. The complainant was staying with her grandmother in an apartment building on Princess Street in Toronto. The complainant had her cell phone in her hand and was listening to music through her "earbud" headphones connected to her cell phone. She was also carrying her purse.
6The apartment building in which the complainant was living had two sets of doors at the building entrance. The unlocked outer door permitted unrestricted entry into a vestibule area, where a buzzer system permitted visitors to contact residents for potential entry, through a locked inner door. Residents were provided with keys to the inner locked door to the building. Once the inner door was unlocked with a key, it would open and remain open on a timer before it closed automatically. The inner door provided entry into the lobby area of the apartment building.
7The complainant testified that the respondent came into the vestibule area behind her as she felt his presence behind her as she was getting her keys for the inner door from her purse. When the complainant turned around and saw the respondent he grabbed her with both hands. More particularly, the respondent put one hand over her mouth and another on the back of her neck. They started struggling with each other. The complainant was trying to get his hands off her mouth and neck. The respondent tried to pull her back outside through the outer door, but the complainant tried to gain entry into the building lobby. As they struggled, the complainant managed to unlock the inner door with her key, and the door opened. During the struggle, the complainant screamed for "help," and asked the respondent what he wanted. The respondent repeatedly told her to "shut up." That was the only thing he said to her throughout the entire incident. The complainant ultimately managed to pull the respondent forward through the inner door to the building, where she dropped her weight to the floor to make it more difficult for the respondent to move her. Initially, the respondent continued to try to pull her back outside, but eventually he gave up his efforts and fled from the scene.
8The entire incident was "very brief" and lasted approximately 9-10 seconds. Security surveillance cameras around the apartment building recorded the respondent following the complainant as she approached the building, recorded their brief struggle in the vestibule, and recorded the respondent's hasty flight from the building thereafter. The video recording of the short vestibule struggle was not accompanied by any audio recording, but confirmed the basic testimony of the complainant, except that it revealed that the complainant had actually opened the inner locked door with her key before turning around and seeing the respondent right behind her in the vestibule area.
9The respondent used sufficient force in his handling of the complainant during their struggle that it hurt her, and afterwards, her back, cheek and jaw were all sore. However, the complainant's earbud headphones remained in place in her ears throughout the entire incident.
10The respondent made no effort to steal any of the complainant's personal property, even though her cell phone, earbud headphones and purse were all in clear view on her person. Further, the respondent made no verbal demands to the complainant to turn over any of these personal items to him.
11At the time of the incident the respondent was dressed in a black hoodie (with the hood over his head), khaki shorts and running shoes. He was also wearing gloves on his hands. The complainant described him as being in his 30's, approximately five feet, eight or nine inches tall, and with a bigger, heavier build and facial hair.
12When she was asked during her testimony what she thought the respondent was going to do to her that night, the complainant responded: "Honestly, I don't know."
C. The Conclusion of the Preliminary Inquiry Justice
13At the end of the preliminary inquiry, Justice Ray concluded that the evidence was not sufficient to justify committing the respondent to trial on a charge of sexual assault, but rather was only sufficient to commit him for trial on a charge of assault simpliciter.
14In her ruling, Justice Ray observed that it was mere "conjecture" that the assault by the respondent on the complainant was for a sexual purpose, and that there were a number of other equally likely potential reasons for the assault, including robbery and kidnapping. Justice Ray also noted that the assault might have been committed out of some mental illness on the part of the respondent, or for no rational reason at all. Justice Ray concluded that, while the sufficiency "threshold" for a committal for trial was "low," mere "conjecture and speculation fall below what is required in order for there to be a committal for trial."
15In the result, Justice Ray concluded that while there was certainly more than sufficient evidence justifying the committal of the respondent for the offence of assault simpliciter, the evidence did not justify committal on the charge of sexual assault.
D. The Relevant Legal Principles
16The applicable legal principles are well settled and were relatively recently reiterated by the Court of Appeal for Ontario in R. v. Wilson, 2016 ONCA 235, at paras. 20-28.
17According to s. 548 of the Criminal Code, R.S.C. 1985, chap. C-46, it is the duty of a justice conducting a preliminary inquiry to determine whether or not the evidence against the accused is "sufficient" to put the accused on trial. In applying this test the justice must determine whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. See United States of America v. Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at pp. 1079-1080; R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, at pp. 836-845; R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, at pp. 160-161.
18Moreover, in determining the question of the sufficiency of the evidence against the accused, the justice at the preliminary inquiry must keep in mind that it is entirely within the province of the jury to accept or reject all, part, or none of any witnesses' evidence, and to determine what inferences should be drawn from the evidence. Any potential questions as to the weight of the evidence and/or its reliability (including issues as to the credibility of individual witnesses) are simply beyond the scope of the jurisdiction of the presiding justice. Accordingly, at this stage of the proceedings, any reasonable interpretation of the evidence and/or permissible inferences which can be drawn from the evidence – beyond conjecture or speculation – must be resolved in favour of the Crown. To weigh competing inferences would be to usurp the function of the trier of fact. See R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Clarke (2002), 2002 CanLII 44997 (ON CA), 159 O.A.C. 221, at para. 4; R. v. Wilson, at para. 24; Re Martin, Simard and Desjardins and The Queen (1977), 1977 CanLII 1383 (ON CA), 41 C.C.C. (2d) 308 (O.H.C.J.), at p. 321.
19In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, the Supreme Court of Canada confirmed that this same legal standard applies regardless of whether the evidence is direct or circumstantial, but the court noted that the task of the justice is somewhat more complicated in cases of circumstantial evidence as, in such cases, the judge must determine what potential inferences are reasonably open to the jury from the circumstantial evidence. More particularly, McLachlin C.J.C., delivering the judgment of the court, stated, at para. 23, that answering this question "inevitably requires the judge to engage in a limited weighing of the evidence," in the sense of "assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw." See R. v. Wilson, at para. 23.
20The law is clear that the prerogative remedy of certiorari is available to quash both committals and discharges ordered at the conclusion of a preliminary inquiry. However, the scope of supervisory court review is very narrow, and is limited to jurisdictional errors, regardless of whether it is the Crown that seeks to quash a discharge or an accused person who seeks to quash a committal order. See R. v. Patterson, 1970 CanLII 180 (SCC), [1970] S.C.R. 409, at pp. 411-413; A.G. Quebec v. Cohen, 1979 CanLII 223 (SCC), [1979] 2 S.C.R. 305, at pp. 306-310; R. v. Forsythe, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268, at pp. 271-272; R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at pp. 100-104, 107-108; R. v. Dubois, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366, at pp. 368-380; R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at paras. 27-28; R. v. Kamermans, 2016 ONCA 117, at paras. 12-16.
21Moreover, with respect to the sufficiency of the evidence, the scope of review by certiorari is "very limited" in that the reviewing court does not simply engage anew in the limited weighing function assigned to the preliminary inquiry justice. The reviewing court must not simply substitute its opinion regarding the sufficiency of the evidence for that of the justice at the preliminary inquiry. See R. v. Russell, at paras. 19, 48; R. v. Wilson, at para. 25-26; R. v. Manasseri, 2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28. Indeed, as the Supreme Court of Canada stated in R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at paras. 23 and 37, it would be "improper for a reviewing court to intervene" regarding a decision of a preliminary inquiry justice "merely because the preliminary inquiry judge's conclusion on sufficiency differs from that which the reviewing court would have reached." Accordingly, a decision by a preliminary inquiry justice on the question of the sufficiency of the evidence is "entitled to the greatest deference." See R. v. Wilson, at para. 28; R. v. Martin, 2001 CanLII 4971 (Ont.C.A.), at para. 3.
E. Analysis – The Present Case
22Applying these governing principles, I am not satisfied that the preliminary inquiry justice committed any jurisdictional error in concluding that there was no evidence that the respondent's assault on the complainant was a sexual assault in the circumstances of the present case. In reaching this conclusion, I rely, more particularly, upon the following considerations:
- No Sexual Contact: None of the physical touching of the complainant by the respondent, during the course of the incident, was in any way sexual. The respondent placed his hands over the complainant's mouth and behind her neck, but touched her nowhere else on her body during their struggle. While sexual assaults certainly do not depend solely upon contact with certain specific areas of the human anatomy (e.g. genitals or breasts), physical contact with such areas would provide some evidence of the sexual nature of an alleged assault. There is no such evidence in the present case. See R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at para. 9, 11, 13.
- No Violation of Complainant's Sexual Integrity: The assault by the respondent did not in any way violate the sexual integrity of the complainant. Indeed, the complainant testified that she did not know the reason for the assault by the respondent. See R. v. Chase, at para. 11; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 23-25.
- No Sexual Language or Gestures: The assault by the respondent was not accompanied by any specific language or physical gestures of a sexual nature on the part of the respondent. In short, nothing said or done by the respondent during the assault suggested that the assault was of a sexual nature. See R. v. Chase, at para. 11.
- No Evidence of any Sexual Gratification Motive: There is no evidence that the respondent assaulted the complainant out of any motive for sexual gratification. This factor, which might potentially provide evidence of the alleged sexual nature of the assault, is absent in the present case. See R. v. Chase, at para. 11; R. v. Alderton (1985), 1985 CanLII 1955 (ON CA), 49 O.R. (2d) 257 (C.A.), at p. 263.
- Not a Sexual Assault – Objectively Viewed: When viewed in light of all of the surrounding circumstances, the alleged sexual or carnal nature of the assault would not, in my view, have been apparent or visible to an independent, objective observer. It was not apparent even to the complainant, the alleged victim of the assault. See R. v. Chase, at paras. 9, 11; R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60.
- Conjecture and Speculation: As Justice Ray accurately noted, while it is certainly conceivable that the assault was sexually motivated, other possible explanations for the assault on the complainant are equally plausible. For example, the Crown conceded during argument that the respondent may have been trying to kidnap the complainant. Similarly, the assault on the complainant may have been in furtherance of a robbery, or some other act of violence toward the complainant. Moreover, there was no evidence disclosed at the preliminary inquiry from which it could be logically and reasonably inferred that the respondent's assault of the complainant was of a sexual nature. See R. v. P.L.R.L., 2010 MBQB 220, at paras. 24-30; R. v. Wilson, at para. 30; R. v. Keene, 2013 ONSC 4266, at paras. 49-51, 63-65; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321 (C.A.), at para. 40.
- No Jurisdictional Error: In any event, conclusions as to the inferences that may potentially be reasonably drawn from the evidence at a preliminary inquiry are within the jurisdiction of the justice and are not properly reviewable by way of certiorari. See R. v. Turner, 2012 ONCA 570, 292 C.C.C. (3d) 69, at paras. 28-30. This is not a case where the justice preferred one reasonable inference to another. Rather it is a case where the justice concluded that the evidence simply did not reasonably support the inference that the assault on the complainant was a sexual assault. See R. v. Magno (2006), 2006 CanLII 21758 (ON CA), 210 C.C.C. (3d) 500 (Ont.C.A.), at paras. 15-17; R. v. Laframboise, 2007 ONCA 750. Further, contrary to the Crown's arguments, the justice did not err in her understanding of the legal elements of the offence of sexual assault, nor did she fail to consider all of the evidence in reaching her conclusion as to the insufficiency of the evidence. See R. v. Deschamplain, at para. 28. Accordingly, any potential error by the justice in this regard was not of a jurisdictional nature.
23In short, in my view Justice Ray did not commit any jurisdictional error in concluding that the evidence in this case did not support any reasonable inference that the assault on the complainant was a sexual assault. Rather, the Crown's suggestion that the respondent's assault on the complainant was of a sexual nature, was not based upon any evidence, but amounted to mere conjecture and speculation.
F. Conclusion
24In the result, the certiorari application by the Crown is dismissed. An order shall issue accordingly.
Kenneth L. Campbell J.
Released: August 15, 2016
CITATION: R. v. Hodgson, 2016 ONSC 5149
COURT FILE NO.: M6/16
DATE: 20160815
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
DAVID HODGSON
REASONS FOR DECISION
[Certiorari Application]
K.L. Campbell J.
Released: August 15, 2016