Court File and Parties

CITATION: R. v. Cuvilie, 2016 ONSC 7032

COURT FILE NO.: 30/16

DATE: 2016-11-14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Deion Cuvilie

BEFORE: Heeney R.S.J.

COUNSEL: Meredith Gardiner, Counsel for the Crown (Respondent) Robert Sheppard, Counsel for the Accused (Applicant)

HEARD: November 8, 2016 at London

ENDORSEMENT

[1] Following argument of this application to quash the accused’s committal for trial, I indicated that the application was dismissed, with reasons to follow. These are those reasons.

[2] The accused was committed for trial, on consent, on the following counts:

• Count #1 s. 92(3) Criminal Code: possession of a restricted firearm;

• Count #2 s. 86(3): careless storage of a firearm; and,

• Count #3 s. 95(2): possession of an unloaded firearm.

[3] Following argument, he was committed for trial by the preliminary inquiry judge, George J. of the Ontario Court of Justice, on the following two further counts:

• Count #4 s. 244(2): discharging a handgun at Isaiah Johnson-Philips with intent to endanger his life; and,

• Count #5 s. 268(2): aggravated assault on the same complainant.

[4] On February 11, 2015, the complainant was shot in the abdomen with a handgun, at the Holiday Inn in London in the hallway outside his girlfriend’s room. When he testified at the preliminary inquiry, he initially denied, during his examination in chief, knowing who had shot him. He was then given an opportunity to view the video statement he had given on February 26, 2015. Crown counsel obtained leave to cross-examine him on that statement, pursuant to s. 9(2) of the Canada Evidence Act. The complainant ultimately adopted key portions of his statement.

[5] Significantly, the complainant testified that he knew the accused, whom he referred to as “D.”, and that it was the accused who shot him.

[6] On cross-examination, he agreed with defence counsel that he really didn’t have a good recollection of what happened that night, and felt that if he didn’t give the officer “what they’re looking for” he might be charged himself with the shooting. As to his statement that it was the accused who shot him, it was put to him that “the truth is you can’t really be sure, because you don’t recall, correct?” The complainant’s response was “Yes”.

[7] The preliminary inquiry judge referred in broad terms to all of this evidence in his reasons for committal. He noted first and foremost that the complainant was not at all interested in testifying against the accused. He then noted the damning evidence against the accused, consisting of a clear and unequivocal adoption of his prior statement, and then referred to the “effusive, reluctant, inarticulate account” given during cross-examination, “which was him simply agreeing with whatever Mr. Downing put to him.”

[8] He found that the impact of the latter would be an issue for the trier of fact to determine, and committed the accused to trial on the two counts in question.

[9] The matter before this court is not an appeal of that decision, but is instead an application for the extraordinary remedy of certiorari. Certiorari will issue where a reviewing court finds that the inferior court has acted in excess of its statutory jurisdiction, or has acted in breach of the principles of natural justice which is taken to be an excess of jurisdiction: R. v. Russell, 2001 SCC 53, [2001] S.C.J. No. 53 at para. 19.

[10] The jurisdictional error which is alleged is the failure to have considered “the whole of the evidence”, which is mandated by s. 548(1)(b) of the Code. Essentially, counsel for the accused argues that although the complainant implicated the accused in his examination in chief after his review of his video statement, he later retracted from that evidence during cross-examination. Thus, the “bottom line” of his evidence was his final position that he did not remember who shot him.

[11] I do not agree that it is the task of the preliminary inquiry judge to digest the evidence of the complainant to arrive at a “bottom line”, and to consider only that in determining whether there is sufficient evidence to put the accused on trial. Instead, he is mandated to consider the whole of the evidence. That includes the evidence given in chief that it was the accused who shot him.

[12] If the preliminary inquiry judge had considered only the final position of the complainant, given during cross-examination, that he did not remember who shot him, that would, indeed, have amounted to a failure to consider “the whole of the evidence”.

[13] The complainant implicated the accused in his examination in chief, and then contradicted himself during cross-examination. It is open to a trier of fact to accept all, some or none of what a witness said. It would, therefore, be open to a trier of fact at trial to accept the evidence given in chief, and reject the contradictory evidence given during cross-examination.

[14] I therefore reject the submission that the preliminary inquiry judge failed to consider the whole of the evidence, and thereby exceeded his jurisdiction. To the contrary, he expressly considered all of the evidence in reaching his decision.

[15] Once it is found that the preliminary inquiry judge acted within his jurisdiction, his decision as to the sufficiency of the evidence is beyond review by certiorari: see R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601 at para. 37.

[16] Even had that decision been reviewable, I would not have interfered. The evidence given by the complainant during his examination in chief, if believed, clearly constitutes evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.

[17] The application is dismissed. The accused has been remanded to Assignment Court on December 13, 2016 to set a date for trial.

“T. A. Heeney R.S.J.”

Regional Senior Justice T. A. Heeney

Date: November 14, 2016