R. v. W.B., 2017 ONSC 7738
CITATION: R. v. W.B., 2017 ONSC 7738
COURT FILE NO.: CR-17-00002-00MO
DATE: 20171025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
W.B.
Applicant
– and –
HER MAJESTY THE QUEEN
Respondent
Mark Snider, for the Applicant
Adam Zegouras, for the Crown
HEARD at Belleville: October 25, 2017
MEW J. (ORALLY)
THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. THE PUBLICATION OF EVIDENCE TAKEN AT A PRELIMINARY INQUIRY IS RESTRICTED BY ORDER OF JUSTICE S. HUNTER, ONTARIO COURT OF JUSTICE, DATED 6 JANUARY 2017, MADE PURSUANT TO SECTION 539 OF THE CRIMINAL CODE OF CANADA
REASONS FOR JUDGMENT
(Certiorari Application)
[1] On the 6th of January, 2017, W.B. was committed for trial on charges of an indecent act and sexual assault, contrary to sections 173(1) and 271 of the Criminal Code of Canada respectively. He now moves by way of certiorari for an order quashing the committal.
[2] A reviewing court should only intervene in an application such as this where the preliminary inquiry judge committed a jurisdictional error: R. v. Sazant, 2004 SCC 77, [2004], 3 S.C.R. 635.
[3] The applicant asserts that the preliminary inquiry judge lost jurisdiction due to his failure to recognize the absence of evidence of at least one of the essential elements of each offence charged. Specifically, in respect to the indecent act charge, the applicant submits that there was no evidence of a subjective intent to insult or offend. In respect to the sexual assault charge, the applicant argues that the judge exceeded his jurisdiction by relying on the content of the complainant's video statement, despite her failure to adopt that statement and by committing the applicant to trial on the basis of evidence which would require the trier of fact to speculate with respect to the identity of the applicant.
[4] The genesis of the applicant's position on the indecent act charge, arises from the following extract from the preliminary inquiry transcript at page 35, lines 14 to 20:
Ah, there was just a particular day. I don’t remember when - what day it was. I was in the hall, and then [W.B.] had come out of his place and we were walking down the hall and he says, 'Well, let's go to your place.' Ah, I had two drinks, and we went to my place, and he sat down on the couch, and then he proceeded to take — stand up. He took off his pants and asked me to hop on.
[5] The applicant in his factum asserts that the evidence of specific intent of the offence during the examination in-chief, was limited to the complainant testifying as follows, and this is extracted from lines 26 to 27 at page 35 of the preliminary inquiry transcript: “I seen everything. I was sort of shocked and then - yeah, I was shocked.”
[6] And then during cross-examination, the complainant had testified that the incident had shocked her, that it was "unexpected". That she, "didn't know what it was". And that it was, "very unexpected". And those clips are taken from paragraph 48 of the transcript at lines 18, 21 and at page 49, lines 18 and 20.
[7] The applicant argues that the complainant's testimony, that she was, "shocked" by the "very unexpected" actions of the applicant, is insufficient to amount to evidence of a subjective intent to insult or offend.
[8] The context in which the alleged offences are set to have occurred involves two people who had known each other for about four years, but between whom there had been no romantic aspirations or flirtatious conduct. The applicant then, allegedly, asked the complainant for a drink, exposed his penis and asked her to “hop on”.
[9] In R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, Mr. Justice Cory, for the Supreme Court, said this at paragraph 19, with respect to offences which require proof of a specific intent:
… it will always be necessary to explain that, in determining the accused’s state of mind at the time the offence was committed, jurors may draw the inference that sane and sober persons intend the natural and probable consequences of their actions. Common sense dictates that people are usually able to foresee the consequences of their actions. Therefore, if a person acts in a manner which is likely to produce a certain result it generally will be reasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences.
[10] While, no doubt, skillful counsel, such as those present, will argue that the language used by the complainant in this case could give rise to a number of different inferences, as the Supreme Court noted in the Sazant case, at paragraph 18, "[w]here more than one inference can be drawn from the evidence, only inferences that favour the Crown are to be considered" for the purposes of determining whether or not to commit an accused person to trial.
[11] In my view, it would be open to a trier of fact, to infer from the evidence of the complainant, if accepted, that the accused would have foreseen the probable consequence of his actions would be the conclusion that he intended to insult or offend the complainant. I therefore find no error on the part of the preliminary inquiry judge in having arrived at a similar conclusion.
[12] Turning to the sexual assault charges, it is important to recall that the complainant is developmentally delayed. Both of the arguments advanced before me as to the preliminary inquiry judge's loss of jurisdiction were also fully argued before the preliminary inquiry judge himself. It is clear from a review of the transcript that there was a full, perhaps even robust, discussion between the Court and counsel on the issues of both the complainant's adoption of her video statement and evidence relating to the identification of the accused and that exchange, as I was reminded by counsel for the Crown, forms part of the preliminary inquiry judge's decision, for the purposes of a review such as this.
[13] The complainant had adopted, without qualification, her video statement during the course of her evidence in-chief. However, on cross-examination she said that she had listened to some of the video only and that she had forgotten some of it. The exchanges that occurred on this issue between counsel and the preliminary inquiry judge are at page 58, lines 1 to 16 and then page 59, lines 26 to 35 of the transcript:
MR. SNIDER: As to the first count, I have a couple of issues with committal, the first being that in my respectful submission, the complainant did not adopt the contents of her statement, as required by section 715.2. She testified that she listened to some of it. She's not sure what she said. She doesn't remember what she said in the video. Respectfully, she can't be said to have adopted her statement.
THE COURT: But she said she did.
MR. SNIDER: Well she never said that.
THE COURT: No, no, she said it in direct examination, that what she told the police was true.
MR. SNIDER: Does that constitute adopting the video statement?
THE COURT: It does to me.
[14] And then the second extract:
THE COURT: I don't have any doubt that she adopted her statement. The extent to which it is accurate from a reliability point of view and perhaps a veracity point of view is an issue of credibility. It's not an issue of admissibility at this point, with respect, in my view. I think she adopted her statement as best she could.
[15] The preliminary inquiry judge's conclusion that the complainant had adopted her video statement is an evidentiary ruling on an issue of admissibility. Evidentiary rulings made at a preliminary inquiry are beyond the reach of a judicial review, whether the ruling is right or wrong: R. v. Gallant, 2009 NBCA 84, [2009] N.B.J. 409 (C.A.), at paragraph 50; R. v. Goa, 2012 ONSC 2344 at paragraph 26.
[16] With respect to the issue of identification, there were inconsistencies. The complainant had previously said that she did not know the applicant's name, but during cross-examination, she said that she did not know him. That evidence was considered, alongside evidence of the complainant in the indecent act charge, who said that she had seen the complainant in the sexual assault charge visit the accused's residence on a number of occasions. The complainant on the sexual assault charge had also provided a physical description of her assailant, which was discussed by the preliminary inquiry judge.
[17] I see no error in the conclusion of the preliminary inquiry judge that considering the evidence as a whole, there would be sufficient evidence, if accepted by the trier of fact, to identify the applicant as the perpetrator of the alleged assault. It follows that I find no reviewable error on the part of the preliminary inquiry judge.
[18] The application is therefore dismissed.
Graeme Mew J.
Handed down: 25 October 2017 (orally)
CITATION: R. v. W.B., 2017 ONSC 7738
COURT FILE NO.: CR-17-00002-00MO
DATE: 20171025
ONTARIO
SUPERIOR COURT OF JUSTICE
W.B.
Applicant
– and –
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
(Certiorari Application)
Mew J.
Handed Down: 25 October 2017 (orally)