R. v. Prempeh, 2017 ONSC 578

CITATION: R. v. Prempeh, 2017 ONSC 578

COURT FILE NO.: 1839/16

DATE: 20170203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JERMAINE PREMPEH

Applicant

G. Hendry, for the Crown

B. Goldman, for the Applicant

HEARD: January 13, 2012

REASONS FOR JUDGMENT

Information Contained Herein is Prohibited from Publication by the Order of The Honourable Justice P. Currie dated August 22, 2016

FRAGOMENI, J

1The Applicant brings an Application for Certiorari following his committal by The Honourable Justice P. Currie dated August 29, 2016 on the charges of Attempt Murder and two counts of Transferring a Firearm.

2The Applicant submits that the preliminary hearing Justice made a jurisdictional error in committing the accused on the charge of Attempt Murder by committing the accused in the absence of evidence of identity and relying on post-offence conduct that a properly instructed jury could not use to support an inference of guilt.

3With respect to the trafficking firearm counts, the Applicant submits that the preliminary hearing Justice exceeded his jurisdiction by allowing the Crown to re-open its case following submissions.

Transfer Firearm

4In relation to the charge of Transfer Firearm the Crown introduced a series of text messages from a Blackberry Messenger account associated with the Applicant. These text messages supported the inference that the Applicant was discussing selling firearms to unknown third parties. During the Crown’s case the Crown did not present any evidence that the Applicant was not authorized to transfer a firearm.

5In closing submissions on committal counsel for the Applicant pointed out that the Crown had failed to present evidence on one of the elements’ of the charge of Transfer Firearm. In response the Crown requested that Justice Currie allow the Crown to reopen its case and present fresh evidence. Justice Currie granted the Crown’s request and the Crown filed the affidavit of Jason Matthew Morris Eibers, which stated that the Applicant was not authorized to transfer a firearm.

Position of the Applicant

6The Applicant submits that Justice Currie’s decision to allow the Crown to re-open its case violated the principle of justice captured in s.7of the Charter. As such it was a denial of natural justice amounting to a jurisdictional error. When Justice Currie re-opened the evidence the Applicant was being forced to make the Crown’s case against himself.

Position of the Crown:

7The Crown submits that Justice Currie acted within his jurisdiction when he allowed the Crown to re-open its case. Any error, assuming one existed, would be an error in law and is not reviewable by this court.

Justice Currie’s Oral Ruling to Re-Open

8It is informative and important to set out portions of Justice Currie’s ruling as it will give context to the conclusion that I make.

9Firstly Justice Currie acknowledges that “we’re at the preliminary inquiry stage which is, in my view, significantly different.”

10At page 31 of the August 24, 2016 transcript, Justice Currie states the following:

Analysis and Conclusion

11The ruling by Justice Currie to allow the Crown to re-open was an evidentiary ruling. An evidentiary ruling, even if decided wrongly, does not amount to jurisdictional error. In R v. LeBlanc (2009), 2009 NBCA 84, 250 C.C.C. (3d) 29 (N.B.C.A.) the court set out the following at para. 58:

In summary, I am of the view that the decision challenged by way of Certiorari was an evidentiary ruling that is insulated from judicial review. It was a ruling the justice made in the course of exercising the powers conferred upon him by the Criminal Code, thus made within the scope of his jurisdiction. If his ruling was in error, it constituted at most an error of law and not a jurisdictional error. Certiorari is only available to quash a jurisdictional error, not an error of law…

12Justice R. Dan Cornell J. dealt with the Standard of Review in R. v. L.(R.J.) 2010 ONSC 5374 commencing at paragraph 13 as follows:

The leading cases on the standard of review on a certiorari application to quash a committal for trial are Quebec (Attorney General) v. Cohen, 1979 223 (SCC), [1979] 2 S.C.R. 305 (“Cohen”) and Forsythe v. R., 1980 15 (SCC), [1980] 2 S.C.R. 268 (“Forsythe”). In these cases, the Supreme Court held that certiorari should only be granted where the preliminary inquiry judge makes a jurisdictional error. In Forsythe, Laskin C.J., writing for the court, noted that the failure by the preliminary inquiry judge to observe a mandatory provision of the Criminal Code, or the denial of natural justice are two examples of jurisdictional errors. Laskin C.J. continued, “mere disallowance of a question or questions on cross-examination or other rulings on proferred evidence would not, in my view, amount to jurisdictional error.” A similar finding was made in Cohen, in which Pigeon J., writing for the court, held, at p. 301, “certiorari lies only for lack of jurisdiction and a decision concerning the admissibility of evidence, even if erroneous, does not affect jurisdiction.”

More recently, in R. v. Gallant (2009), 2009 NBCA 84, 250 C.C.C. (3d) 29 (N.B.C.A.), Richard J.A. of the New Brunswick Court of Appeal canvassed a number of decisions holding that certiorari provides a remedy only where there is a jurisdictional error. After having reviewed these cases, Richard J.A. endorsed, at para. 48, the statement of Schuler J. in R. v. Auger, 2001 NWTSC 30, [2001], N.W.T.J. No. 28, that where an error is “one in the application of legal principles or rules of evidence, and there is no failure to comply with a statutory provision, the preliminary inquiry judge acts within his or her jurisdiction and the error does not result in loss of that jurisdiction.”

These cases demonstrate that it is a well-established principle that certiorari will only be a remedy where a preliminary inquiry judge has acted beyond their jurisdiction. An error as to the admissibility of evidence is not a jurisdictional error and, as such, is not reviewable on a certiorari application.

13I am not satisfied that the learned Justice committed a jurisdictional error and on that basis the Application as it relates to the transfer firearms charges, is dismissed.

Attempt Murder

14With respect to this charge it is useful to start the discussion with portions of Justice Currie’s ruling. It is important to note that Justice Currie attaches significant weight to the after-the-fact conduct to support his ultimate conclusion of committal. The applicant takes issue with that and submits that Justice Currie committed jurisdictional error in doing so.

15In his reasons for committal Justice Currie acknowledges that the video evidence on its own would be insufficient for committal. He states:

I have the video evidence before me showing the vehicles in the area and the one vehicle, in particular, that is parked, and from that vehicle someone emerges, approaches the address we have been described as the place of a shooting and then returns to the vehicle. There is video evidence, as both Mr. Goldman and Mr. Hendry point out is, would be insufficient for me to commit you, or anyone for trial on that charge, standing on its own.

16Mr. Owusu Prempeh, (no relation to the accused) identified the shooter as about four feet tall.

17Justice Currie noted that Cst. Wood testified that she was five foot seven and she thought the accused was a few inches shorter than she was. She testified she thought the accused was about five six, but then said the top of his head was somewhere around her mouth level.

18At page 12 of the August 29, 2016 transcript, Justice Currie notes:

So, again, as I say and both counsel agree, based only on the video, and whatever there is about the make of what appears to be a silver SUV, I do have the evidence of the one officer who says he recognizes that make and model as a Toyota Venza. I also heard from Ms. Ugiabe, Tracy Ugiabe, she was the first witness called for the Crown, she wasn’t very helpful, but didn’t seem to have much recollection of anything, but Mr. Goldman did point out in cross-examination that she apparently had originally told the police that she saw the vehicle and described it as a Nissan with a Nissan symbol, a Murano. Again, these are difference pieces of evidence. If this were a trial, the trier of fact is going to have to weigh whatever Ms. Ugiabe says against what the officer says about this thinking in that the vehicle in the video was a Toyota Venza. But, as a preliminary inquiry judge I can’t weigh that evidence. I can simply conclude that there is some evidence from the officer upon which the jury could rely to conclude that the vehicle in question is a Toyota Venza. Whether they do so conclude or not, I don’t know, but there is some evidence that that’s the type of vehicle.

19It is at this time that there is a point of departure between the Applicant and the Crown on Justice Currie’s handling of the after the fact conduct.

20The Applicant submits that the Crown needed the after the fact conduct to anchor a committal on this charge. The Applicant argues that Justice Currie improperly and incorrectly weighed this evidence and in doing so committed jurisdictional error.

21The Applicant submits that in order for after the fact conduct to rise to the level of circumstantial evidence that could possibly support a finding of guilt, it should be consistent with the other evidence and point clearly towards an inference of guilt.

22At paragraph 38 of his factum, the Applicant sets out the following:

It is respectfully submitted that the evidence does not support any reasonable inference of guilt on the charge of Attempt Murder. As Tracey Ugiabe identified the car on the scene as a Nissan and due to the weaknesses in Cst. Mavity’s identification of the car in the surveillance footage as a Venza, a proper exercise in limited weighing of the evidence closes off the possible inference that the car is a Venza. And the Applicant’s calls to the car dealerships must be examined in context: the Applicant had discovered that the police were lying to him in order to create new evidence linking him to a shooting as well as a prior homicide. In this context the post-offence conduct does not suggest guilt. The Applicant ought to have been discharged.

23The Crown submits that the cumulative effect of after the fact conduct clearly leads to an inference that the Applicant is the shooter and demonstrates the following:

− a concern over the existence of GPS data on his mother’s Toyota Venza which could implicate the vehicle in the crime

− a plan between the Applicant, his family members, and Nana Nkansah to come up with a plan on what should be told to the police and;

− the destruction of video evidence which could assist the police.

24Commencing at page 13 of the August 29, 2016 transcript, Justice Currie dealt with all of the after the fact conduct evidence. I will set out portions of his reasons to give this issue context:

− I heard evidence from the investigating officers that they are conducting what they referred to as stims or stimulations to aid in their investigation of this matter

− Denise, your sister, tells you that the police were asking about whether your mother drives a Venza and who else lives in the house

− Detective Arnold lets you know that he’s inquiring about an incident back on April 20 on your street involving a silver SUV… There are discussions about the SUV and the GPS which may or may not be in that type of vehicle

− Detective Arnold says “So if we did a download on the Venza it would tell us where the car was, to the meter, on the night of our incident and the time, the exact time it stopped, where it stopped, when the brakes were pushed, when the seatbelts were taken off, how many people were sitting in the car.”

− the conversation between you and a person named Nana Nkansah … So, less than 10 minutes after the conversation with Detective Arnold takes place, there a conversation between you and this Nana person where you say,

“Yo fam, jokes are on me, dog, they’re on me dog, they’re on me for this shit”,

and there’s some reference to a GPS situation from what you’ve described as your mom’s whip At the end of that short excerpt you say, my sister going to say that she was using, driving the whip the whole day

− then at 12:07 for the following, over the next approximately two hours, there are transcripts of your calling, I think its six or seven in total, Toyota dealerships asking about the 2014 Toyota Venza and whether they are equipped with the GPS device or navigation device and whether they can be tracked and even if it doesn’t have a navigation device, is there something in the vehicle that could be downloaded…

25Justice Currie notes at this point:

All of that evidence is something the jury is going ot have to consider about wehther or not these are actions which would be taken and conversations which would be made by a person who had nothing to do with the siliver SUV that we see in the videos.

26In conclusion Justice Currie states the following:

The reaction and the inquiries made by you in relation to the question of whether this vehicle could be located on GPS, conversations you had with some of those individuals and your mother about the vehicle, is all evidence upon which the jury could, in my view, draws the inference that you were guilty of the offence….

The Preliminary Inquiry – Threshold for Committal

27The duty imposed upon a justice at a preliminary inquiry is the same that governs a trial judge sitting with a jury in deciding whether the evidence is sufficient to justify withdrawing the case from the jury. The question for the preliminary inquiry judge is whether there is any evidence on which a reasonable jury, properly instructed could convict. US.A. v. Sheppard (1976) 1976 8 (SCC), 30 C.C.C. (2d) 424 (S.C.C.); and R. v. Arcuri, 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.).

28In Arcuri, the court set out the following at paras. 21 to 23, and 30:

The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: Shephard, supra, at p. 1080; see also R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, at p. 160. Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080.

The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge’s task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt’s Manual of Criminal Evidence (1998), at §8.0 (“[d]irect evidence is evidence which, if believed, resolves a matter in issue”); McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at §2.74 (direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial”). It is for the jury to say whether and how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.

The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). 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.

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

29In R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 (S.C.C.), the court stated the following at para 18:

The preliminary inquiry judge in this appeal, Moore J., correctly stated the test for committal and the corresponding onus that falls on the Crown. He also recognized that a preliminary inquiry judge is not permitted to assess credibility or reliability, and that where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. A preliminary inquiry judge who fails to respect these constraints acts in excess of his or her jurisdiction: see Dubois v. The Queen, 1986 60 (SCC), [1986] 1 S.C.R. 366, at p. 380.

30In R. v. Munoz, 2006 3269 (ON SC), [2006] O.J. No. 446 (Ont. Sup. Ct.), Ducharme J. reviewed the Test for Committal at paras. 19 to 22 as follows:

One of the purposes of the preliminary inquiry is to determine whether there is sufficient evidence to commit an accused person to trial. Section 548(1) of the Criminal Code, R.S.C. 1985, c. C-46, requires the preliminary inquiry judge to order the accused to stand trial, "if in his opinion there is sufficient evidence" and to discharge the accused, "if in his opinion on the whole of the evidence no sufficient case is made out". Thus, the question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a motion for a directed verdict, namely, "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". Under this test, a preliminary inquiry judge must commit the accused to trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction". [See Note 4 below]

In order to commit an accused for trial on a charge, a preliminary inquiry justice must find evidence of each essential element of the offence, which, if believed by a properly instructed jury, could result in a conviction. The preliminary hearing judge may not assess the credibility of witnesses or weigh the evidence for competing inferences in determining whether there is sufficient evidence for committal. The test is the same whether the Crown is relying on direct evidence or circumstantial evidence. However, in each of these circumstances the process engaged in by the preliminary inquiry must be different.

Where the Crown is relying on direct evidence with respect to the essential elements of the offence, the task of the preliminary inquiry judge is quite straightforward. As McLachlin C.J.C. explained in Arcuri, supra, at p. 839 S.C.R., p. 31 C.C.C.: [page143]

By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true . . . It is for the jury to say whether and how far the evidence is to be believed. . . Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.

(Emphasis added)

Where the Crown seeks a committal on the basis of circumstantial evidence, the task of the preliminary inquiry judge becomes somewhat more complex. This was also explained in Arcuri, supra, per McLachlin C.J.C. at pp. 840 S.C.R., pp. 31-32 C.C.C.:

The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed. . . . 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.

(Emphasis added)

This limited weighing means that inferences to be drawn from circumstantial evidence need not be "compelling" [See Note 5 below] or even "easily drawn" [See Note 6 below] in order to be reasonable. If there are competing inferences, these are for the trier of fact to resolve. A preliminary inquiry judge commits jurisdictional error where he weighs competing inferences or chooses among them. [See Note 7 below] If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination. As Major J. put it in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, [2004] S.C.J. No. 74, at para. 18, "where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to [page144] be considered". Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it.

However, despite the very circumscribed scope of the preliminary inquiry judge's function with respect to the drawing of inferences, the weighing of the evidence involved, while limited, is of great importance. Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence -- the accused must be discharged as there would be an absence of evidence on an essential element.

31In R. v. Campbell, 1999 2372 (ON CA), [1999] O.J. No. 4041, (Ont.C.A.), our Court of Appeal dealt with what constitutes jurisdictional error at paras. 4 to 8:

In setting aside the discharge and ordering the appellants

to stand trial on the manslaughter charges McCombs J. said this:

In my 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.” On the contrary, there

was, inter alia, evidence of motive in the form of hostility to

the deceased’s brother by one of the respondents; evidence of a

stated intention by one of the respondents to “shoot up Bay

Mills”; eyewitness evidence that all of the respondents were

discharging firearms at or near the scene moments before the

homicide; and evidence of the use by one or more of the

respondents of a firearm of the same calibre as the gun used to

kill Frederick Idemudia.

The determination of the credibility of the

witness and the cumulative weight of the evidence is not

for the determination of a judge presiding over a

preliminary hearing, but is reserved for the trier of

fact.

In the face of this evidence, the conclusion of

the preliminary hearing judge discharging the respondents on

the manslaughter charge amounted to a usurpation of the

function reserved for the trier of fact. In doing so, he

exceeded his jurisdiction.

5We agree with this analysis.

6The case against the appellants on the manslaughter charges

is founded on circumstantial evidence. In such a case it is the

entirety of the circumstantial evidence together with any

inferences that could reasonably be drawn from that evidence that

must be measured against the standard in s.548(1) of the Criminal

Code.

7As Campbell J. said in R. v. McIlwain (1988) 67 C.R. (3d)

397 (O.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 Dubois v.

The Queen (1986) 1986 60 (SCC), 25 C.C.C. (3d) 221 (S.C.C.), 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 231-2:

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.

8Given this clear law, in this case it is unnecessary to

articulate an all encompassing test for jurisdictional error when

an accused is discharged after a preliminary hearing. Here the

preliminary hearing judge rested his decision to discharge the

appellants on his “no evidence” findings. However, these findings

are not the only factual conclusions that could reasonably be

drawn from this evidence. As McCombs J. points out in the passage

quoted above, there are other inferences that could reasonably be

drawn from all the circumstantial evidence and upon which a

reasonable jury, properly instructed, could find the appellants

guilty of manslaughter. The preliminary hearing judge, in effect,

rejected these other inferences in preference to the factual

conclusions which he recited. In doing so he committed

jurisdictional error by deciding the question reserved for the

trier of fact.

32In R. v. Foster, [2008] 8419 (Ont. Sup. Ct.), Hill J. set out the following at para 31 with respect to the role of the reviewing court and the function of the Preliminary Hearing Court. Justice Hill’s summary of the legal principles is informative:

Between the parties there is no disagreement as to the governing principles relating to the jurisdiction of a preliminary inquiry judge or the court engaging in certiorari review. The point of departure is the application of some of these guidelines to the record before the provincial court. Therefore, only a summary statement of principles is necessary.

Role of the Reviewing Court

(1) The court reviewing by certiorari a committal for trial exercises limited authority for intervention:

(i) The court may, in its discretion, provide a remedy for jurisdictional error alone: R. v. Deschamplain (2005), 2004 SCC 76, 196 C.C.C. (3d) 1 (S.C.C.) at 10; R. v. Russell (2001), 2001 5555 (ON CA), 156 C.C.C. (3d) 1 (S.C.C.) at 10, 13; R. v. Dubois (1986), 25 C.C.C. (2d) 221 (S.C.C.) at 224, 229-30.

(ii) The reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he or she could form an opinion that the evidence is sufficient to put the accused on trial: R. v. Collin, [2004] O.J. No. 791 (C.A.) at para. 2; R. v. Tuske, [1978] O.J. No. 1253 (C.A.) at para. 3; R. v. Coke, [1996] O.J. No. 808 (S.C.J.) at para. 12-13.

(iii) Supervisory review is not permitted to overturn a committal decision merely because the preliminary inquiry judge “reached a conclusion different from that which the reviewing court would have reached”: R. v. Russell, at 10.

(2) While an erroneous ruling regarding the admissibility of evidence does not affect the preliminary inquiry judge’s jurisdiction (Deschamplain, at 9-10; R. v. Fisher, [1987] O.J. No. 331 (C.A.) at 2), in the sense that the court has the right to be wrong (an error of law) acting within its jurisdiction, and recognizing that there exists no closed list of jurisdictional errors, the following constitute such errors:

(a) committal where no evidence exists on an essential element of the crime charged (R. v. Skogman (1984), 1984 22 (SCC), 13 C.C.C. (3d) 161 (S.C.C.) at 168) or, equally arbitrarily, failing to consider the whole of the evidence, in deciding whether there is some, as opposed to no, evidence: R. v. Deschamplain, at 11, 14-6; R. v. Sazant (2004), 2004 SCC 77, 208 C.C.C. (3d) 225 (S.C.C.) at 233-5; R. v. Thomson (2005), 2005 8664 (ON CA), 74 O.R. (3d) 721 (C.A.) at para. 11

(b) failure to observe a mandatory provision of the Criminal Code: R. v. Deschamplain, at 10; R. v. Forsythe (1980), 1980 15 (SCC), 53 C.C.C. (2d) 225 (S.C.C.) at 229

(c) applying an incorrect test for committal and thereby “deciding an issue reserved to another forum”: R. v. Dubois, at 230-2

(d) engaging in impermissible weighing of competing inferences: R. v. Sazant, at 234; R. v. Laframboise & Odette, [2007] O.J. No. 4212 (C.A.) at para. 1, 3; R. v. Clarke, 2002 44997 (ON CA), [2002] O.J. No. 2340 (C.A.) at para. 4; R. v. Campbell (1999), 1999 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont. C.A.) at para. 8.

(3) Once the superior court of criminal jurisdiction exercising prerogative writ authority finds jurisdictional error on the part of the preliminary inquiry court, the court is “to assess the sufficiency of the evidence in order to determine the appropriate remedy”: Laframboise & Odette, at para. 4.

Function of the Preliminary Hearing Court

(4) A justice acting under Part XVIII of the Criminal Code pursuant to s. 548(1), “[w]here all the evidence has been taken” at the preliminary inquiry, “shall”:

…if in his [her] opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial…

(5) In forming an “opinion” as to the evidence’s sufficiency to justify committal, the justice exercises a discretionary, but constrained, assessment of the evidence. The whole of the admissible evidence is to be considered.

(6) If there is sufficient evidence upon which a reasonable and properly instructed jury could find guilt, the preliminary inquiry judge must commit to trial: R v. Savant, at para. 16; R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at 31. This committal test is the same whether the evidence is direct or circumstantial: Arcuri, at 31, 36; R. v. Monteleone (1987), 1987 16 (SCC), 35 C.C.C. (3d) 193 (S.C.C.) at 198.

(7) The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offence charged – even if only a scintilla of evidence: (R. v. Martin, 2001 4971 (ON CA), [2001] O.J. No. 4158 (C.A.) at para. 3; R. v. Olubowale, [2001] O.J. No. 961 (C.A.) at para. 8, 10) provided “it registers in the scales as any evidence at all within the Sheppard test” (R. v. McIlwain (1988), 1988 9870 (ON SC), 67 C.R. (3d) 393 (Ont. H.C.J.) at 309 (McIlwain approved, R. v. Montour, [2002] O.J. No. 141 (C.A.) at para. 4; and in R. v. Campbell at 165)). “To be logically relevant, an item of evidence does not have to establish on any standard, the truth or falsity of a fact in issue” – it need only “tend to increase or diminish the truth or falsity of a fact in issue” – “there is no minimum probative value required for evidence to be relevant”: R. v. Arp (1999), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.) at 338.

(8) As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence: R. v. Deschamplain, at 9; R. v. Savant, at para. 18; R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at 172. In other words, the preliminary inquiry is not “a forum for litigating the merits of the case against the accused”: R. v. Russell, at 11. Where more than one inference can be drawn from the evidence, “only the inferences that favour the Crown are to be considered”: R. v. Savant, at para. 18. Because of the limited focus of a preliminary inquiry, the provincial court must commit for trial even if the defence proffers exculpatory evidence: R. v. Savant, at para. 16.

(9) The prohibition against weighing evidence in assessing the committal question is narrowly modified where the prosecution adduces circumstantial evidence said to point toward guilt. The preliminary inquiry judge, in determining whether the elements of the offence may be reasonably inferred from circumstantial evidence, is permitted to engage in a “limited weighing” of such evidence to the extent of assessing “the reasonableness of the inferences to be drawn from the circumstantial evidence”: R. v. Arcuri, at 35.

(10) In circumstantial evidence cases, there may exist not one, but a range or field of reasonable inferences which may be drawn. The ultimate determination as to whether an available reasonable inference ought to be drawn is for the trier of fact – a judge is not to ask whether facts ought to be inferred and is not to make “determinate factual inferences”: R. v. Cinous, at 157, 171, 173; R. v. Arp, at 353. In other words, a preliminary inquiry justice acts in excess of jurisdiction where he or she chooses from amongst competing or alternative reasonable inferences: R. v. Figueroa et al., 2008 ONCA 106, [2008] O.J. No. 517 (C.A.) at para. 34; R. v. D.M., [2008] O.J. No. 326 (C.A.) at para. 5. A preliminary hearing court is not to apply the rule in Hodge’s Case to determine whether a reasonable inference is consistent with guilt and inconsistent with any other rational explanation: R. v. Charemski (1998), 1998 819 (SCC), 123 C.C.C. (3d) 225 (S.C.C.) at 230; R. v. Monteleone, at 198; R. v. Mezzo (1986), 1986 16 (SCC), 27 C.C.C. (3d) 97 (S.C.C.) at 107.

Nature of Circumstantial Evidence

(11) In a preliminary hearing, the prosecution leads relevant evidence in the form of primary facts. From these factual circumstances, the Crown may seek to establish the existence of a fact in issue, i.e. identity of the perpetrator, by submitting that an inference may reasonably and circumstantially be drawn from the primary facts – there exists an inferential gap between the primary fact and the fact to be proved: R. v. Arcuri, at 31-2; R. v. Cinous, at 172-3. Whether the inference is a reasonable one to draw usually involves an application of “human experience and common sense” (R. v. Figueroa et al., at para. 33; U.S.A. v. Huynh (2005), 2005 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307) at times described as informal judicial notice: McWilliams’ Canadian Criminal Evidence (4th ed.), S.C. Hill, D. Tanovich, L. Strezos (Aurora: Canada Law Book, 2003) at 23-6 to 16. The inferences to be drawn will depend on the nature of the primary fact, the fact that is sought to be inferred from it, the position of the parties, and the totality of the evidence: R. v. Figueroa, at para. 33. A single item of circumstantial evidence may be the only evidence of an essential element of the offence: R. v. Arp, at 353.

(12) Circumstantial inferences are ones which “can be reasonably and logically drawn from a fact or group of facts established by the evidence”: R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. A trier of fact “cannot be invited to draw speculative or unreasonable inferences”: R. v. Figueroa et al., at para. 35, 42. Most cases “will involve hiatuses in the evidence which can be filled only by inference”: Lameman v. Canada (Attorney General), 2006 ABCA 392, [2006] A.J. No. 1603 (C.A.) at para. 87. “The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess”: U.S.A. v. Huynh, at 307. The same point is made in C.P.R. Co. v. Murray, 1931 53 (SCC), [1932] S.C.R. 112, at 117, in adopting the following dicta from Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 at 45:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved. Indeed, as Lord Shaw said in Marshall v. Owners of SS. Wild Rose [26 T.L.R. 608; [1910] A.C. 486, at 494.]: “The facts in every case may leave here and there a hiatus which only inference can fill.” The true doctrine in the matter is clearly stated by Lord Penzance in Parfitt v. Lawless [(1872) L.R., 2 P.&D., 462, at 472.]: “It is not intended to be said that he upon whom the burthen of proving an issue lies is bound to prove every fact or conclusion of fact upon which the issue depends. From every fact that is proved legitimate and reasonable inferences may, of course, be drawn, and all that is fairly deducible from the evidence is as much proved for the purpose of a prima facie case as if it had been proved directly.” I conceive, therefore, that in discussing whether there is in any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of a reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue.

(13) Some inferences are strong and capable of creating practical certainty while others are weaker: Lameman v. Canada (Attorney General), at para. 94. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw (R. v. Katwaru (2001), 2001 24112 (ON CA), 153 C.C.C. (3d) 433 (Ont. C.A.) at 444) or indeed the most obvious or compelling inference: R. v. Munoz, 2006 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.) at para. 21-31. The justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefrom without regard to the context of the totality of the evidence: R. v. Coke, at para. 9.

Test for Certioriari

33The test for certiorari has been set out in numerous cases. The test is whether there was any evidence upon which the committing justice could have formed the opinion that the evidence was sufficient for the accused to stand trial. The reviewing court does not determine whether a properly instructed jury could convict, but whether there was any evidence before the committing justice upon which the justice could form the opinion that the evidence is sufficient to put the accused on trial. The reviewing court does not substitute its opinion of the evidence for that of the preliminary inquiry justice.

34In R. v. Russell, 2001 SCC 53, [2001] S.C.J. No. 53, the court stated at paras. 19 and 20:

The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: Skogman v. The Queen, 1984 22 (SCC), [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, supra, at p. 100 (citing Forsythe v. The Queen, 1980 15 (SCC), [1980] 2 S.C.R. 268).

With respect to preliminary inquiries held under s. 548 of the Criminal Code, the reasons for limiting the scope of supervisory remedies is clear. While the preliminary inquiry also affords defence counsel the opportunity to assess the nature and strength of the case against his or her client, its primary purpose is to ascertain whether there is sufficient evidence to warrant committing the accused to trial: Skogman, supra, at p. 106 (citing G. Arthur Martin, Q.C.: “Preliminary Hearings”, Special Lectures of the Law Society of Upper Canada (1955), p. 1); Dubois v. The Queen, 1986 60 (SCC), [1986] 1 S.C.R. 366, at pp. 373-74. Critically, the preliminary inquiry is not meant to determine the accused’s guilt or innocence. That determination is made at trial. The preliminary inquiry serves a screening purpose, and it is not meant to provide a forum for litigating the merits of the case against the accused. The limited scope of supervisory remedies reflects the limited purpose of the preliminary inquiry.

35In R. v. Mullings, [2005] 24763 (Ont. Sup. Ct), Durno J. set out the following at paras. 31 to 33:

While the committing justice was required to apply the “sufficiency” test discussed above, on certiorari a reviewing justice is required to apply the test stated by Martin J.A. in R. v. Tuske, [1978] O.J. No. 1253 (C.A.)(QL) at para. 3:

[T]he reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he could form an opinion that the evidence is sufficient to put the accused on trial.

A court reviewing a committal order is not permitted to interfere with the order if there is “some evidence” or “a scintilla of evidence” respecting each essential element of the offence charged: Re. Skogman and the Queen, supra; R. v. McFarlane, [2004] O.J. No. 2108 (C.A.)(QL).

As is the case in many certiorari applications, much of the argument in this case centered around whether the inferences the committing justice found a reasonable jury could draw were inferences, as the Crown contends, or were based on speculation and conjecture from equivocal or no evidence, as the defence argues. In R. v. Latif (unreported judgment dated October 14, 2004)(S.C.J.) Cunningham A.C.J. held, “there is a considerable difference between speculation and inference. An inference is “a truth of proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical sequence from other facts or a state of facts already proven or admitted”. Speculation, is forming a theory or conjecture without factual basis: Oxford Concise Dictionary.

36The scope of review was articulated in R. v. Martin, [2001] 497 (Ont. C.A.), at para 3 as follows:

We see no error on the part of MacDougall J. warranting this court’s intervention. As the appellants concede, the test to be applied by a preliminary inquiry judge in determining whether the evidence is sufficient for the purpose of a committal for trial is whether there is any evidence upon which a properly instructed jury, acting reasonably, could find guilt. It is well settled that where there is a scintilla of evidence upon which the preliminary inquiry judge could conclude that the test is satisfied, a reviewing court should not intervene to quash the committal See also R. v. Russell, [2001] S.C.C. 53 where the Supreme Court of Canada reaffirmed the limited scope of review on certiorari to review committals for trial and reiterated that a preliminary inquiry judge’s determination of the sufficiency of evidence is entitled to the greatest deference. It is only if there is no evidence on an element of the offence that a reviewing court can vacate the committal.

37In R. v. Eickmeier, [2007] 18024 (Ont. S.C.), Quinn J. reiterated these principles at paras. 16 to 23:

It is trite law that, on an application to quash a committal for trial, the court is not exercising an appellate-review function.

[R]eview on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached”: see R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 at para. [19], citing R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93 at 100.

lack or excess of jurisdiction

A committal to stand trial may be quashed only on the ground of a lack of or excess of jurisdiction: see R. v. Deschamplain (2004), 2004 SCC 76, 196 C.C.C. (3d) 1 (S.C.C.) at para. [17].

Acting in excess of jurisdiction arises where there has been a failure to observe a mandatory provision of the Criminal Code or where there has been a denial of natural justice. Failure to prove an essential element of the offence amounts to jurisdictional error: see R. v. Deschamplain, supra, at paras. [17] and [23].

Committing an accused to stand trial without any evidence is an obvious example of a committal without jurisdiction.

“some evidence”

Where there is “some evidence” to justify the decision to commit for trial, it is within the jurisdiction of the preliminary inquiry justice to decide whether this evidence is of sufficient weight to order the accused to stand trial: see R. v. Deschamplain, supra, at para. [23].

The role of the reviewing court is to determine whether there was any evidence at the preliminary inquiry that would allow the justice, acting judicially, to form the opinion that there was sufficient evidence to order the accused to stand trial: see Martin, Simard and Desjardins v. The Queen (1977), 1977 1383 (ON CA), 41 C.C.C. (2d) 308 (Ont. C.A.); aff’d 1978 30 (SCC), [1978] 2 S.C.R. 511; and R. v. Sequin (1982), 31 C.R. (3d0 271 (Ont. C.A.).

If there is some evidence and if the preliminary inquiry justice has “properly directed his mind to the evidence and to the question of whether there was ‘sufficient evidence’ to commit, his decision is not subject to review”: see R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93 (S.C.C.) at para. 169.

Conclusion

38I am not satisfied that the learned Justice committed jurisdictional error. Justice Currie dealt with after the fact conduct and it was open to him to find that the test for committal had been met. It is not my role as the reviewing court to substitute my opinion of the evidence for that of the preliminary inquiry Justice.

39In his reasons Justice Currie correctly points out that the testimony of Ms. Ugiabe relating to the vehicle being a Nissan was not very helpful. He noted that she did not seem to have much recollection of anything.

40Further Justice Currie ruled that the officer could give evidence about recognizing the vehicle as a Toyota Venza. Justice Currie correctly notes that there is, therefore, some evidence from the officer upon which a jury could rely to conclude that the vehicle in question is a Toyota Venza. It is within that context then, that the after the fact conduct gains its probative value and evidentiary strength. The after the fact conduct cannot be viewed in isolation from the totality of the evidence in determining the threshold for committal.

41The authorities make it clear that the reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he or she could form an opinion that the evidence is sufficient to put the accused on trial.

42The Application, is therefore, dismissed.