Court File and Parties

COURT FILE NO.: CR-18-100000-82-MO DATE: 20180925 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Applicant – and – JUSTIN McGREGOR and HERVE KALONJI Respondents

COUNSEL: M. Bernstein and K. Hughes, for the Applicant P.J.I. Alexander, for the Respondent McGregor R. Fedorowicz, for the Respondent Kalonji

HEARD: July 27, 2018

REASONS FOR DECISION ON CERTIORARI APPLICATION

SCHRECK J.:

[1] The preliminary inquiry is an important charge-screening procedure designed to ensure that accused persons stand trial only where a judicial officer concludes that there is sufficient evidence to warrant it. Neither party has a right of appeal from a decision of a preliminary inquiry judge. Such decisions are subject to review by this court, but only on the narrow grounds of whether the preliminary inquiry court exceeded or failed to exercise its jurisdiction. Errors or law, or errors as to the sufficiency of evidence, are not reviewable. While this distinction is clear in theory, it is sometimes difficult to apply in practice.

[2] The two respondents were charged together with a number of other individuals with various drug trafficking and criminal organization offences. Following a lengthy preliminary inquiry, they were both discharged. The applicant seeks to have those discharges set aside on the basis that the preliminary inquiry judge committed a host of jurisdictional errors in arriving at her conclusions.

[3] I would dismiss the application. In my view, reviewing courts must show considerable deference to preliminary inquiry decisions. Reasons being reviewed must be read as a whole and portions of them should not be considered in isolation. Due regard must be had for the fact that preliminary inquiry judges are expected to release reasons expeditiously in order to prevent trials from being delayed. Reviewing courts must be cautious not to allow a disagreement with the preliminary inquiry judge’s conclusions lead to a premature finding of jurisdictional error. Having taken that approach in this case, I have concluded that the preliminary inquiry judge properly exercised and did not exceed her jurisdiction.

I. Overview of the Preliminary Inquiry

[4] Seven individuals, including the two respondents, were charged on a 16-count Information with a variety of drug trafficking and criminal organization offences. The charges were the result of a lengthy police investigation involving numerous intercepted communications and surveillance. The evidence clearly established that several of the accused and others were involved in the trafficking of significant amounts of cocaine on an ongoing basis.

[5] The preliminary inquiry began before Nelson J. on September 21, 2017 and was heard over the course of 16 days, ending on January 23, 2018. On March 1, 2018, the preliminary inquiry judge released her reasons committing all of the accused except for the two respondents.

II. The Respondent McGregor

A. The Charges

[6] The respondent McGregor was charged with committing an offence for the benefit of, at the direction of or in association with a criminal organization, contrary to s. 467.12 of the Criminal Code (Count 3) and conspiracy to traffic cocaine, contrary to s. 465(1)(c) (Count 5). He was discharged on both counts.

B. The Evidence

(i) The Intercepted Communications

[7] The case against Mr. McGregor was based entirely on intercepted communications between April 20 and May 5, 2016. The evidence established that one of the other accused, Dejan Mitrovic, had several telephone conversations with an individual using the telephone number 647-856-1931. There is no issue that Mr. Mitrovic and this individual discussed trafficking cocaine and that the individual agreed to sell cocaine at Mr. Mitrovic’s direction. The sole issue at the preliminary inquiry was whether there was sufficient evidence that Mr. McGregor was the person using the number 647-856-1931.

(ii) The Name “Jay”

[8] In at least three of the calls, Mr. Mitrovic addresses the person he is speaking to as “Jay”. However, he refers to him by other names in other calls. During a call on April 21, 2016, Mr. Mitrovic referred to the other individual as “Jankee”. There were several calls on April 22 and Mr. Mitrovic referred to the other individual as “Jan” in one of them, as “Jay” in another and as “Jack” in a third.

(iii) The Respondent’s Connection to the Number in 2014

[9] On December 18, 2014, a police officer, Cst. Claudio Rescigno, responded to a call from a building superintendent who had heard shouting in an apartment. Cst. Rescigno attended the apartment and spoke to a man and a woman inside. The man identified himself to Cst. Rescigno as Justin McGregor. When asked by Cst. Rescigno for a telephone number, he provided the number 647-856-1931. Cst. Rescigno then left and no charges were laid. He later identified the respondent as the person he had interacted with.

C. The Preliminary Inquiry Judge’s Reasons

[10] At the preliminary inquiry, the Crown submitted that the fact that Mr. McGregor provided Cst. Rescigno with the telephone number 647-856-1931 in December 2014 combined with the fact that the person who spoke to Mr. Mitrovic went by the name “Jay” (which is the first letter in Mr. McGregor’s given name) was sufficient to allow a trier of fact to infer that Mr. McGregor was the person Mr. Mitrovic had been speaking to. The preliminary inquiry judge did not agree (at paras. 18-25):

… I am of the view that the Crown’s evidence taken at its highest does not permit the inference sought by the Crown.

The connection between McGregor and phone number 1931 is not proximate in time – some 16 months separates McGregor’s representation to police and the appearance of the number on the intercepts. There is no evidence whether the number belongs to a cell phone or a land line. Cell phones tend to be used routinely by one person; multiple users frequently share land lines.

Further, the use of the initial J on the intercepts is so generic as to be insignificant. I note, for example, co-accused Nguyen’s first name – John – also starts with a “J”. Similarly, Jagdeep Rathmore, another co-accused on the original information, has a first name that starts with “J”. In other words, three of the seven defendants listed on the original information in this proceeding have first names that begin with “J”.

There is no evidence that McGregor was ever in possession of a phone with number 1931 or that he made calls from that number or received calls at that number. There is no evidence that he had any association with any of the other defendants. There is no evidence that he was caught on surveillance during the investigation. In short, there is no direct evidence, other than his own dated statement, that in the spring of 2016 McGregor was making or receiving calls using number 1931.

In my view, the Crown’s evidence that McGregor gave number 1931 as his phone number 16 months before the offence date in combination with evidence that the person using the 1931 number in May/June or 2016 was referred to as “J” would not permit a properly instructed trier of fact to infer that the person on the intercepted 1931 calls was McGregor. Such a conclusion is not a reasonable inference arising from this evidence. Instead, it is pure speculation of the sort described by Justice Ducharme in R. v. Munoz (2006), 2006 ONSC 3269, 86 O.R. (3d) 134 (S.C.J.).

The Crown has not led sufficient evidence to allow a trier of fact to conclude that McGregor was the caller using phone number 1931.

III. The Respondent Kalonji

A. The Charges

[11] The respondent Kalonji was charged with participating in a criminal organization, contrary to s. 467.11 (Count 2), committing an offence for the benefit of, at the direction of or in association with a criminal organization, contrary to s. 467.12 (Count 3), and conspiracy to traffic cocaine, contrary to s. 465(1)(c) (Count 8). He was discharged on all three counts. While the Crown initially applied for certiorari with respect to all three counts, it has abandoned its application with respect to Counts 2 and 3.

B. The Evidence

(i) The Intercepted Calls and Expert Evidence

[12] In early May 2016, Mr. Kalonji, Mr. Mitrovic and another accused, Petar Mihailovic, began having discussions about a drug transaction. They arranged to have a meeting and also agreed that Mr. Kalonji would get “35”. Cst. Richard Duffus, who was qualified as an expert in the distribution, pricing and packaging of cocaine, testified that in 2016, a kilogram of cocaine would cost between $36,000 and $44,000. It was his opinion that the reference to “35” in the call was to $35,000 as the price of one kilogram of cocaine. However, the Crown took the position that it was in fact a reference to $3,500 as a 10% down payment.

(ii) The Meetings Between the Respondent and Mr. Mihailovic

[13] On May 12, 2016, Mr. Kalonji was seen entering the apartment building where Mr. Mihailovic lived. He left soon afterwards with a “brick shaped object” in his pocket.

[14] On May 21, 2016, Mr. Kalonji had a second meeting with Mr. Mihailovic. It is the Crown’s theory that it was at this meeting that he delivered cocaine to Mr. Mihailovic.

(iii) The May 21, 2016 Conversation Between Mihailovic and Mitrovic

[15] Immediately after meeting with Mr. Kalonji on May 21, 2016, Mr. Mihailovic had a telephone conversation with Mr. Mitrovic that was intercepted. They discussed opening a package and Mr. Mitrovic told Mr. Mihailovic to “do a little square in the top and then take a scoop out”. Mr. Mihailovic then said “Yeah, man, nice.” Mr. Mihailovic later said “…probably fourteen five per whatever so that gives you … like seventeen”. Cst. Duffus had testified that an ounce of cocaine sold for between $1300 and $1600. It was the Crown’s theory that “fourteen five” was a reference to selling cocaine for $1450 per ounce and that “seventeen” was a reference to 17 ounces of cocaine, which is just under half a kilogram.

[16] There was no evidence of any other transaction involving Mr. Kalonji or any further contact between him and Mr. Mitrovic or Mr. Mihailovic.

C. The Preliminary Inquiry Judge’s Reasons

[17] The preliminary inquiry judge began her analysis by reviewing the jurisprudence respecting whether an agreement to purchase drugs amounts to a conspiracy between the purchaser and the seller. She concluded that the issue before her was whether there was “some evidence that Kalonji intentionally entered into an agreement with Mitrovic and Mihailovic to achieve the common unlawful design of reselling the cocaine.” Her analysis then continued as follows (at paras. 178-181):

A review of the intercepts leads to the conclusion that there is quite simply no evidentiary foundation that would allow a trier of fact to conclude that Kalonji was agreeing to be part of Mitrovic and Mihailovic’s drug trafficking plan. Kalonji was, at best, a mere supplier.

The Crown has led no admissible evidence against Kalonji that the substance that he was selling was cocaine as opposed to a different drug. Further, there is no admissible evidence against Kalonji that would allow a trier of fact to determine the quantity of the substance that Kalonji was selling. Even if Kalonji could be fixed with knowledge that the other two planned to resell the cocaine, there is no evidence that Kalonji was part of that agreement or agreed to become an ongoing supplier. After all, the evidence discloses one possible drug transaction between Kalonji and the other two men. There is no evidence of a history between them or of any agreement to continue working together.

The Crown submits that if Kalonji was awaiting payment for the sale of the cocaine until Mitrovic and Mihailovic resold the cocaine that would be sufficient to implicate Kalonji in their agreement to resell the cocaine. I would agree with the Crown if there was an evidentiary foundation to support the inference the Crown is seeking; there is not. First, there is no admissible evidence that Kalonji was selling cocaine as opposed to some other illicit substance or thing. Second, there is no evidence that Kalonji was awaiting payment or that his payment was conditional on resale of the drug.

In the result, I conclude that whatever the arrangement was as between Kalonji, Mitrovic and Mihailovic, it did not legally amount to a conspiracy to traffic cocaine.

[18] The preliminary inquiry judge’s reasons then continued with the following: “Although this conclusion ends the discussion on this count as regards Kalonji, I have just a few comments to add.” There followed a discussion of the co-conspirator’s exception to the hearsay rule during which the preliminary inquiry judge concluded that the May 21, 2016 conversation between Mr. Mitrovic and Mr. Mihailovic following the transaction was not admissible against Mr. Kalonji.

IV. Analysis

A. Overview of Applicable Legal Principles

(i) The Role of the Preliminary Inquiry Judge

[19] The legal principles applicable to this application are not in dispute. Section 548(1) of the Criminal Code required the preliminary inquiry judge to determine if “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.” It is well established that the sufficiency test is met where there is evidence upon which a reasonable jury, properly instructed, could convict. If so, the preliminary inquiry judge must commit the accused for trial: R v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 16; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 31. In determining whether it would be open to a reasonable jury to convict, the preliminary inquiry judge must keep in mind that a conviction requires proof beyond a reasonable doubt: R. v. Charemski, 1998 SCC 819, [1998] 1 S.C.R. 679, at para. 35.

[20] It is not the preliminary inquiry judge’s role to assess the credibility or reliability of the evidence: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 15; Sazant, at para. 18; Arcuri, at para. 30. However, where the Crown’s case is circumstantial, the preliminary inquiry judge must engage in a limited weighing of the evidence in that she must determine whether the evidence reasonably supports the inferences the Crown wishes the trier of fact to draw: Arcuri, at para. 22. Determining whether an inference may reasonably be drawn is not the same as choosing between competing reasonable inferences: R. v. Singh, 2016 ONSC 3136, at paras. 10-11.

[21] While a preliminary inquiry judge is required to determine whether inferences are reasonable, it has been recognized that “the boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a difficult one to determine”: Hon. D. Watt, Watt’s Manual of Criminal Evidence, (Toronto: Thompson Reuters Canada, 2017) at §12.01; R. v. Munoz (2006), 2006 ONSC 3269, 86 O.R. (3d) 134 (S.C.J.).

(ii) The Role of the Reviewing Court

[22] There is no right of appeal from the decision of a preliminary inquiry judge. The decision can only be reviewed by way of an application for an extraordinary remedy, pursuant to Part XXVI of the Criminal Code. The scope of such a review is narrow and limited to issues of jurisdiction. Errors of law are not reviewable. Nor is this court entitled to substitute its opinion as to the sufficiency of evidence for that of the preliminary inquiry judge. This was made clear in Deschamplain, at para. 23:

… [I]t 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, [infra] 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, [1986] 1 S.C.R. 366, at p. 377.

[23] However, where a preliminary inquiry judge fails to consider the whole of the evidence or determines issues reserved for the trier of fact, he or she acts in excess of his or her jurisdiction and the decision is therefore reviewable on an application for certiorari: Deschamplain, at paras. 18-19; Sazant, at para. 18.

[24] There are good reasons why the scope of review of a preliminary inquiry decision is narrow. The outcome of the preliminary inquiry does not finally decide the rights of the parties. The accused who is committed still has a constitutional right to a trial, where he will not be convicted unless the Crown can prove his guilt beyond a reasonable doubt. A discharge is also not necessarily the end of the proceedings. The Crown may still lay a new information or prefer an indictment pursuant to s. 577 of the Criminal Code: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 29; R. v. McLarty, [2000] O.J. No. 2429 (S.C.J.), at para. 1.

(iii) The Nature of Jurisdictional Review

[25] Unlike appellate review of legal errors, jurisdictional review is not concerned with the result reached by the court being reviewed but, rather, with the process leading to it. A preliminary inquiry judge is exercising a power conferred on her by statute, in this case s. 548(1) of the Criminal Code, which provides as follows:

548. (1)When all the evidence has been taken by the justice, he shall

(a) if in his 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; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[26] The preliminary inquiry judge must do what the statute requires but may only do what the statute permits. Provided that she remains within those boundaries of her legal powers, her decision is unreviewable, even if it is incorrect. Her decision is only subject to review if she fails to do what the statute requires her to do or does something beyond what the statute permits her to do. In other words, jurisdictional review involves “an inquiry into whether a person purporting to exercise power is in fact keeping within the realm or ambit of her or his statutory … mandate”: D.J. Mullan, Administrative Law (Toronto: Irwin Law, 2001), at p. 51.

[27] The types of jurisdictional error identified in the cases outlined earlier are illustrative of this approach. A preliminary inquiry judge who fails to consider the whole of the evidence does not do what the statute requires. A preliminary inquiry judge who chooses between competing inferences or engages in an impermissible weighing of the evidence purports to exercise a power that the statute does not permit. Similarly, a preliminary inquiry judge who commits an accused for trial in the absence of any evidence of an essential element of an offence exceeds his jurisdiction because he can only commit if there is sufficient evidence and no evidence cannot amount to sufficient evidence: Russell, at para. 21; R. v. Skogman, 1984 SCC 22, [1984] 2 S.C.R. 93, at para.104. All of these are instances of jurisdictional error.

[28] On the other hand, as explained in Deschamplain, where a preliminary inquiry judge makes a determination of whether there is sufficient evidence for committal by determining whether the evidence would allow a trier of fact to reasonably draw an inference of guilt, she does what she is empowered to do. Whether she is right or wrong, she has acted within her jurisdiction.

[29] Errors of law beyond those that involve the “ambit of the statutory mandate” are also not jurisdictional in nature. As pointed out in Deschamplain, a decision reached after a preliminary inquiry judge erroneously excludes evidence is not subject to review, while a decision reached after a preliminary inquiry judge fails to consider the whole of the evidence is (at paras. 17-18):

The respondent questions why the failure of a preliminary hearing judge to consider evidence tendered by the Crown amounts to jurisdictional error, but the erroneous exclusion of evidence at the preliminary hearing does not. The answer is not elusive. The preliminary inquiry judge has jurisdiction to conduct the inquiry according to the rules of evidence. Any error with respect to the application of those rules that does not rise to the level of a denial of natural justice (which also goes to jurisdiction: see Dubois, supra, at p. 377; Forsythe, [1980] 2 S.C.R. 268, at p. 272) constitutes an error of law, not a jurisdictional error. Errors of law are not reviewable by way of certiorari.

Section 548(1)(b) requires the preliminary inquiry judge to consider “the whole of the evidence” that “has been taken” during the preliminary inquiry. The primary purpose of a preliminary inquiry is to “ascertain whether there is sufficient evidence to warrant committing the accused to trial”: R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 20. It follows that Parliament never intended to allow decisions on the discharge of an accused to be made without full regard to all of the evidence. In my view, it is a jurisdictional error for a preliminary inquiry judge to fail to consider the “whole of the evidence” as required under s. 548(1)(b), and the Ontario Court of Appeal erred in concluding otherwise.

(iv) The “Failure to Draw Reasonable Inferences”

[30] The applicant submits that a preliminary inquiry judge must draw every inference favouring the Crown where there is evidence which is reasonably capable of supporting that inference and that the failure to do so constitutes jurisdictional error. In the applicant’s submission, the reviewing court should determine whether the inference in question is “objectively” reasonable. If it is and the preliminary inquiry judge fails to draw it, then she has committed jurisdictional error. I will explain why I cannot agree with this submission.

[31] As explained earlier, determining whether or not an inference can reasonably be drawn from circumstantial evidence is part of the “limited weighing” function that the preliminary inquiry judge must engage in. It is not for the reviewing court to “simply redo the limited weighing function assigned to the preliminary inquiry judge”: R. v. Manasseri, 2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28. However, that is exactly what the applicant has asked this court to do. The submission that the preliminary inquiry judge must draw inferences that are “objectively” reasonable presupposes that there is some way to determine whether an inference is “objectively” reasonable. However, the only measure of whether an inference is “objectively” reasonable is the opinion of the reviewing court. To conclude that the preliminary inquiry judge failed to draw an inference that was “objectively” reasonable is to substitute my opinion for hers. This is exactly what Deschamplain and the other authorities say I cannot do: R. v. Turner, 2012 ONCA 570, 292 C.C.C. (3d) 69, at paras. 29-30. If the preliminary inquiry judge concludes that an inference is not reasonable, then I must defer to that assessment.

(v) Assessing a Preliminary Inquiry Judge’s Reasons

(a) Distinguishing Jurisdictional Error From Other Types of Error

[32] The distinction made in Deschamplain underscores that jurisdictional review is concerned with the process, not the result. This was explained in Manasseri, at para. 25:

The jurisdictional error inquiry looks not at the correctness of the ultimate decision, but at whether the preliminary inquiry judge exceeded or declined to exercise his or her jurisdiction in the course of arriving at that decision.

[33] For example, if a preliminary inquiry judge wrongly excludes an accused’s confession and then concludes that there is insufficient evidence to justify committal, her decision is not subject to review. However, if the same preliminary inquiry judge admits the confession but then fails to consider it and concludes that there is insufficient evidence, she had committed jurisdictional error. In both cases, the result follows from the failure to consider the confession. However, in the former example, the preliminary inquiry judge did what the Code required and only what it permitted. In the second, she failed to do what the Code required.

[34] While these distinctions are theoretically clear, they are sometimes not easy to apply. For example, in Deschamplain, four members of the Supreme Court of Canada concluded that the preliminary inquiry judge had failed to consider the whole of the evidence and thereby committed jurisdictional error, while three members of the Court (as well as three members of the Ontario Court of Appeal) concluded that any error that had been made was not jurisdictional in nature. Their disagreement turned on their analyses of the preliminary inquiry judge’s reasons. The majority of the Supreme Court of Canada concluded that the preliminary inquiry judge had failed to consider certain evidence and therefore failed to consider the whole of the evidence. The minority and the Court of Appeal concluded that despite not mentioning the evidence, the preliminary inquiry judge must have considered it.

[35] It follows from the foregoing that on a jurisdictional review, the reviewing court must examine the preliminary inquiry judge’s reasons and draw conclusions as to whether she did what the statute required and did not do what the statute did not permit. The focus is not on the result but, rather, on the process whereby the result was reached.

[36] In my view, reviewing courts must be cautious about overstepping their bounds and guard against simply substituting their opinions as to sufficiency for that of the preliminary inquiry judge. When confronted with a conclusion as to sufficiency with which one disagrees, it is easy to jump to the conclusion that because the preliminary inquiry judge’s conclusion was wrong, she must have failed to consider the whole of the evidence, chosen between competing inferences, or committed some other type of jurisdictional error. However, to do so would be wrong. A conclusion that there has been jurisdictional error requires that the preliminary inquiry judge’s reasons reflect that she failed to do something she was required to do or did something she was not permitted to do. Inferring jurisdictional error from an incorrect result is insufficient. [1]

(b) Suggested Guiding Principles

[37] In conducting the type of jurisdictional review at issue here, courts should, in my view, keep the following principles in mind.

[38] First, it is well established that a trial judge is “presumed to know the law with which he works day in and day out”: R. v. Burns, 1994 SCC 127, [1994] 1 S.C.R. 656, at para. 18; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 41, at para. 47. There is no reason why this presumption ought not to apply when these same trial judges preside over preliminary inquiries.

[39] Second, a preliminary inquiry judge’s reasons, like those of a trial judge, should be read as a whole: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16. It is wrong to analyze a preliminary judge’s reasons by dissecting them into small pieces and examining each piece in isolation: R. v. Morrissey (1995), 1995 ONCA 3498, 22 O.R. (3d) 514 (C.A.), at pp. 524-525; R. v. George (2000), 2000 ONCA 5727, 49 O.R. (3d) 144 (C.A.), at para. 22.

[40] Third, like all judicial reasons, a preliminary inquiry judge’s reasons for committal or discharge should be evaluated in accordance with a context-specific functional approach: R.E.M., at para. 15. Two aspects of that context are worth noting.

[41] The first is that a preliminary inquiry is an interlocutory step in the proceedings, which may proceed on to a trial that must take place within a reasonable time as guaranteed by s. 11(b) of the Charter. As a result, a preliminary inquiry judge may not have the luxury of lengthy periods of time in which to prepare comprehensive reasons. For example, in this case the preliminary inquiry judge’s decision was released on March 1, 2018, approximately 21 months after charges were first laid and only nine months before the delay in the case would become presumptively unreasonable according to R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. [2] I am not suggesting that the complexity of this case could not justify delay in excess of the Jordan ceiling. However, it was clearly incumbent on the preliminary inquiry judge to deliver reasons as expeditiously as possible.

[42] The second noteworthy aspect of the context is that the purpose of the preliminary inquiry differs from that of a trial. How this bears on the issue of whether reasons are adequate was explained in Deschamplain, at paras. 24 and 34:

Silence in the reasons alone may not necessarily be sufficient to justify the intervention of a reviewing court. As this Court has previously held, there must be some rational basis in the record to justify such intervention: see Macdonald v. The Queen, 1976 SCC 140, [1977] 2 S.C.R. 665, at p. 673 (involving reasons from a court martial); and R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, at paras. 29-30.

It is now plain from Canadian jurisprudence that a trial judge is not required to give extensive reasons for a decision, but is bound to indicate what he or she understands the nature of the case to be so that the parties are aware that the case they argued was the one decided: see Sheppard, [2002 SCC 26]. Similarly, a preliminary inquiry judge is not required to render extensive reasons but must demonstrate that he or she met the statutory and mandatory duty to consider the whole of the evidence.

[43] Finally, the reviewing court must accord the decision of the preliminary inquiry judge “the greatest deference”: Russell, at para. 24; R. v. Wilson, 2016 ONCA 235, at para. 28.

[44] With these principles in mind, I turn now to the reasons of the preliminary inquiry judge in this case.

B. The Respondent McGregor

(i) Overview of the Applicant’s Position

[45] As noted earlier, there is no issue that there was sufficient evidence to support the Crown’s theory that the individual using the 1931 telephone number in April and May 2016 was engaged in criminal activity. The sole issue for the preliminary inquiry judge was whether there was sufficient evidence that that person was Mr. McGregor. On this issue, the Crown relied on two pieces of evidence: Mr. McGregor’s statement in December 2014 that this was his telephone number and the fact that Mr. McGregor’s given names starts with the letter “J”, which is how the person in question identified himself on some of the calls.

[46] The applicant submits that in the four paragraphs in which the preliminary inquiry judge explained her conclusion on this issue, she committed virtually every type of jurisdictional error known to the law, including “failing to give effect to reasonable inferences”, “preferring evidence favourable to the accused”, and “considering evidence in isolation”. I will consider each alleged jurisdictional error in turn.

(ii) Failing to Give Effect to Reasonable Inferences

[47] I have already explained why “failing to give effect to reasonable inference” does not constitute jurisdictional error. It was the preliminary inquiry judge’s role to determine whether the inferences the Crown wished to draw were reasonable. In my view, her reasons make it clear that she “failed” to draw the inference that Mr. McGregor was “Jay” because in her view, the inference was speculative and not reasonable. This determination was hers to make and it is not open to me to substitute my view for hers.

(iii) Considering Evidence in Isolation

[48] The applicant submits that the preliminary inquiry judge considered the evidence of the respondent’s use of the telephone number 16 months earlier and the evidence that his given name began with “J” in isolation and failed to consider the cumulative effect of the evidence. This submission is simply not supported by the preliminary inquiry judge’s reasons, which make clear that she did consider the cumulative effect of the evidence (at para. 22):

In my view, the Crown’s evidence that McGregor gave number 1931 as his phone number 16 months before the offence date in combination with evidence that the person using the 1931 number in May/June of 2016 was referred to as “J” would not permit a properly instructed trier of fact to infer that the person on the intercepted calls was McGregor. [Emphasis added].

(iv) “Contradictory Findings”

[49] The applicant also submits that the preliminary inquiry judge’s conclusion and her conclusion on an earlier voluntariness voir dire with respect to the respondent’s statement that that was his telephone number amounted to “contradictory findings”. As I understand that applicant’s argument, the conclusion that the statement was admissible was an implicit acknowledgement that it was relevant to the issue of identity. Since evidence is only relevant if it renders a fact in issue more likely, the fact that the evidence was relevant meant that it supported the inference that the respondent was the person using the number at the time of the offences.

[50] With respect, this argument is based on a misunderstanding of the concept of relevance. Evidence is relevant if it has a tendency to make a proposition more likely than it would be absent the evidence. Determining whether evidence is relevant is not the same as determining what weight, if any, the evidence should have. This is true even in the context of the limited weighing engaged in by a preliminary inquiry judge. It is trite that no evidence is admissible unless it is relevant. If the applicant is correct, than all preliminary inquiries at which any evidence was admitted would result in committals.

[51] In any event, the preliminary inquiry judge’s ruling on the voluntariness voir dire, which is not part of the record before this court, appears to have related only to the issue of voluntariness. The issue of relevance does not appear to have been addressed.

(v) Choosing Between Competing Inferences

[52] The applicant also submits that that the preliminary inquiry judge chose between competing inferences by inferring that “Jay” was one of the other co-accused whose given names began with the letter “J”. I do not read her reasons that way. For ease of reference, the relevant portion of her reasons was the following (at para. 20):

Further, the use of the initial J on the intercepts is so generic as to be insignificant. I note, for example, co-accused Nguyen’s first name – John – also starts with a “J”. Similarly, Jagdeep Rathmore, another co-accused on the original information, has a first name that starts with “J”. In other words, three of the seven defendants listed on the original information in this proceeding have first names that begin with “J”. [Emphasis added].

As I read this, the preliminary inquiry judge’s reference to the co-accused whose names begin with “J” was intended to be an illustration of her previous point that the initial “J” was “so generic as to be insignificant”. She was not inferring that any of the other accused were the person identified as “Jay”.

[53] I also cannot accept the submission that the preliminary inquiry judge “in effect inferred that [the respondent] gave his phone away.” Nothing in her reasons supports this. The fact that she declined to infer that he was using the phone in May and June 2016 does not amount to an inference that he had given it away. Concluding that there is insufficient evidence to support a proposition does not amount to an acceptance of the opposite proposition.

(vi) “No Evidence” and “Insufficient Evidence”

[54] The applicant also points out that the preliminary inquiry judge stated at para. 21 of her reasons that “[t]here is no evidence that McGregor was ever in possession of a phone with number 1931 or that he made calls from that number or received calls at that number”. The applicant is correct that there is a distinction in the caselaw between a finding by a preliminary inquiry judge that there is “no evidence” of an essential element of an offence and a finding that there is “insufficient evidence”. The former can be jurisdictional error while the latter is not. The distinction was explained by Dambrot J. in R. v. Bryce, 2015 ONSC 7004, at paras. 29-31, aff’d 2016 ONCA 513:

But in this case, as I read his decision, the preliminary inquiry judge concluded that there was no evidence before him upon which a reasonable jury properly instructed could return a verdict of guilty rather than merely insufficient evidence. The distinction is admittedly a fine one, but it finds support in the case law.

As a result, where the preliminary inquiry judge wrongly concludes that there is no evidence of an element of the offence charged, or no evidence upon which the accused can be ordered to stand trial, as contrasted with insufficient evidence, the error is jurisdictional. This is made clear in the judgment of the Supreme Court of Canada in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 24, where the Court stated:

While this Court held in Russell, supra, at para. 48, that “a preliminary inquiry judge’s determination of sufficiency is entitled to the greatest deference”, I do not think the issue here has anything to do with “sufficiency”. The preliminary inquiry judge flatly stated, “I find that there is absolutely no evidence of non-consent, in either words or actions.”

That is this case. In this case, as I have noted, the judge said, “I cannot say that the Crown’s theory is supported by the evidence, even if taken at its highest. Without evidence, the conclusion that the Crown wishes me to reach is merely speculation.” In my view, this is not a conclusion that the evidence is insufficient. This is a conclusion that the Crown adduced no evidence that supports the charge against the accused.

If there is any doubt about the meaning of this statement, I turn to what the judge said shortly after: “In other words, there is no evidence from which a reasonable inference can be drawn to support the Crown’s theory” (emphasis added). [Emphasis in original].

[55] While it would have been preferable for the preliminary inquiry judge to avoid using the term “no evidence”, in the circumstances of this case, that fact that she did so does not, in my view, amount to jurisdictional error. As noted earlier, it is improper to consider portions of a preliminary inquiry judge’s reasons in isolation. When read as a whole, the reasons in this case make it clear that the preliminary inquiry judge was well aware of what evidence the Crown was relying on to prove identity and that she did not consider this evidence to be sufficient. At para. 24 of her reasons, she clearly stated that she considered the evidence relied on by the Crown to be “insufficient to ground an inference of guilt.”

[56] In any event, the preliminary inquiry judge’s reference to “no evidence” must be read in the context of the sentence that immediately followed the impugned portion of her reasons, which was: “In short, there is no direct evidence, other than his own dated statement, that in the spring of 2016 McGregor was making or receiving calls using number 1931.” It is clear that by “no evidence”, the preliminary inquiry judge meant “no direct evidence” other than the respondent’s statement.

(vii) Evidence That the Number Belonged to a Cell Phone

[57] The strongest point made by the applicant relates to the preliminary inquiry judge’s statement at para. 19 of her reasons that there was no evidence whether the telephone number in question belonged to a cell phone or a land line. The preliminary inquiry judge was wrong about this. In one of the intercepted calls, the person referred to as “Jay” can be heard giving directions to somebody he is with while he is having a conversation with Mr. Mitrovic and it is clear that he is in a vehicle at the time of the conversation.

[58] The issue is whether the preliminary inquiry judge’s error amounts to a failure to consider the whole of the evidence amounting to jurisdictional error. If the evidence that the phone being used by a “Jay” was a cell phone could be used to support the Crown’s theory respecting Jay’s identity, then the failure to consider it could amount to jurisdictional error if it meant that she had failed to consider the whole of the evidence. However, in my view the evidence does not support the Crown’s theory. I draw this conclusion for two reasons.

[59] First, the Crown never relied on evidence that this was a cell phone in support of its position. The Crown’s position with respect to identity was clearly based on the respondent’s use of the number and the fact that his surname began with “J”.

[60] Second, the preliminary inquiry judge’s opinion that cell phones are used by one person whereas land lines are not had no basis in the evidence. Indeed, the applicant acknowledges this in its factum, where it referred to the preliminary inquiry judge’s conclusion as being “based on conjecture”. The fact that this was a cell phone was irrelevant. It follows that the preliminary inquiry judge’s error was of no moment.

(viii) Conclusion

[61] In my view, when the preliminary inquiry judge’s reasons are read a whole, it is clear that she understood and gave full consideration to the evidence that the Crown relied on to prove the respondent’s identity as the person referred to as “Jay”. Having considered the evidence, she formed the opinion that it was such that a trier of fact could not reasonably infer from it that the respondent was “Jay”. Regardless of the correctness of that conclusion, the preliminary inquiry judge did what she was required to do and no more.

C. The Respondent Kalonji

(i) The Elements of the Offence of Conspiracy

[62] The preliminary inquiry judge was satisfied that there was sufficient evidence from which a trier of fact could conclude that the respondent Kalonji sold drugs to Mr. Mihailovic. She was also satisfied that there was evidence that Mr. Mihailovic and Mr. Mitrovic conspired with each other to traffic cocaine. The issue she had to determine was whether there was sufficient evidence that the respondent was also part of that conspiracy.

[63] In framing the issue, the preliminary inquiry judge relied on and adopted the analysis conducted by Paciocco J. (as he then was) in R. v. Meyer, 2012 ONCJ 791 of when a seller of an illegal drug sells to a buyer who intends to traffic it can be said to have entered into a conspiracy with the buyer. As Paciocco J. explained, there were two lines of authority with respect to this issue which arise out of different readings of the Supreme Court of Canada’s decision in R. v. Sokoloski, 1977 SCC 17, [1977] 2 S.C.R. 523. The first held that when the seller knows that the buyer intends to resell the drug, then he has conspired with the buyer. The second holds that more is required and that there must be proof that the seller and the buyer entered into an agreement to carry out the mutual objective of trafficking. After an exhaustive discussion of the general principles of conspiracy law, Paciocco J. concluded that the second approach was correct (at para. 25):

In my view, the law of conspiracy therefore requires more when applied to seller/buyer drug transactions than proof that the seller knows the buyer intends to resell. It requires proof beyond a reasonable doubt of an agreement between the alleged conspirators to carry out mutual unlawful acts of trafficking albeit, given the ratio in Sokoloski, without necessarily requiring proof of an agreement by each co-conspirator to jointly engage in or participate directly in the actual acts of trafficking that form the subject of the common agreement.

[64] Counsel for the applicant has expressed some doubt as to the correctness of the approach in Meyer on the basis that it arguably conflicts with some older appellate authority, such as R. v. Longworth et al. (1982), 1982 ONCA 2262, 38 O.R. (2d) 367 (C.A.) and R. v. Sohrabian, [1993] O.J. No. 4108 (C.A). Paciocco J. was aware of this: Meyer, at para. 26. However, he chose to follow the Ontario Court of Appeal’s more recent judgment in R. v. Alexander (2005), 2005 ONCA 32566, 206 C.C.C. (3d) 233 (Ont. C.A.). In that case, Doherty J.A. had stated (at para.46):

The actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective. Co-conspirators share a common goal borne out of a meeting of the minds whereby each agrees to act together with the other to achieve a common goal.

It follows from the mutuality of objective requirement of the actus reus that a conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy. [Citations omitted].

[65] Whatever uncertainty may has existed at the time Meyer was decided, the issue has now been settled. The approach in Alexander was recently re-affirmed by not only the Court of Appeal in R. v. Nguyen, 2016 ONCA 182, 346 O.A.C. 375, at para. 21, but also by the Supreme of Canada in R. v. J.F., 2013 SCC 12, [2013] 1 S.C.R. 565, at paras. 51-52.

[66] It follows from the foregoing that the preliminary inquiry judge was correct to frame the issue with respect to the respondent as being whether there was “some evidence that Kalonji intentionally entered into an agreement with Mitrovic and Mihailovic to achieve the common unlawful design of reselling the cocaine … which agreement Kalonji intended to be carried forward” (at para. 177). The preliminary inquiry judge concluded that there was not. My task is to determine whether this conclusion reflects jurisdictional error.

(ii) The Theory That the Respondent Was to Be Paid From the Proceeds of Sale

[67] The applicant submits that the evidence supports the inference that Mr. Kalonji was provided with a $3,500 down payment for the cocaine and that the balance was to be paid once the cocaine was resold. I agree with the preliminary inquiry judge that there is simply no evidence supporting this inference. It is entirely speculative. There is no evidence of any communication between the respondent and Mr. Mitrovic and Mr. Mihailovic after May 21, 2016, nor is there any evidence that they subsequently met. There is nothing in the intercepted communications to support the inference that payment would be made in instalments.

(iii) Failure to Consider Evidence of Context

(a) The Carter Test in the Context of a Preliminary Inquiry

[68] It is well established that the acts and declarations of alleged co-conspirators may be admissible against an accused in certain circumstances. To determine whether they are admissible, a trier of fact must follow the three steps set out in R. v. Carter, 1982 SCC 35, [1982] 1 S.C.R. 938. At the first stage, the trier of fact must determine whether, based on all of the evidence, the existence of a conspiracy has been proven beyond a reasonable doubt. At the second stage, considering only the accused’s own acts and declarations, the trier of fact must determine whether the accused’s membership in the conspiracy has been established on a balance of probabilities. If so, the trier of fact may consider the acts and declarations of co-conspirators that are in furtherance of the conspiracy in order to determine whether the accused’s membership in the conspiracy has been proven beyond a reasonable doubt.

[69] The Carter test is modified in the context of a preliminary inquiry in accordance with the test for sufficiency. The preliminary inquiry must determine whether, based on all of the evidence, a reasonable jury, properly instructed could find that a conspiracy existed. If so, the preliminary inquiry judge must determine whether it would be open to a reasonable jury to conclude that the accused was a probable member of the conspiracy based on his own acts and declarations. If so, the accused must be committed for trial and there is no need to consider the third Carter step as evidence of probable membership based on the accused’s own acts and declarations necessarily meets the “some evidence” threshold applied at a preliminary inquiry: R. v. Rojas, [1997] O.J. No. 3756 (Gen. Div.); R. v. Tello, 2018 ONSC 385, at para. 19.

(b) The Alleged Error

[70] The applicant submits that the preliminary inquiry judge considered the evidence that was directly admissible against the respondent “blindly without regard to the milieu in which it played out” and not “in the context of what happened just before and just after.” It appears that this submission is based on the following portion of the preliminary inquiry judge’s reasons (at para. 182):

As previously indicated, the Crown sought to use the contents of the intercepted conversation of May 21, 2016 between Mitrovic and Mihailovic as evidence against Kalonji that one half a kilo of cocaine was the substance being trafficked. In my view, this conversation is not admissible against Kalonji to provide a foundation for an inference that Kalonji was engaged in an agreement with a common purpose.

The applicant submits that this was an error because the conversation between Mr. Mitrovic and Mr. Mihailovic was admissible as “context”.

[71] As the applicant correctly points out, while only an accused’s own acts and declarations can be considered at the second Carter stage, those acts and declarations must be considered in the context of all of the evidence, including the acts and declarations of the alleged co-conspirators: R. v. Gagnon (2000), 2000 ONCA 16863, 147 C.C.C. (3d) 193 (Ont. C.A.), at para. 62; R. v. Filiault (1981), 63 C.C.C. (3d) 321 (Ont. C.A.); R. v. Mota (1979), 1979 ONCA 2966, 46 C.C.C. (2d) 273 (Ont. C.A.), at pp. 281-282. The applicant submits that the preliminary inquiry judge failed to appreciate this legal principle in the portion of her reasons reproduced above and, as a result, committed jurisdictional error. There are three reasons why I do not agree.

[72] First, on its face, the statement in the preliminary inquiry judge’s reasons is correct in law. The conversation between Mr. Mitrovic and Mr. Mihailovic was not admissible against the respondent. The applicant is correct that it could be considered as context, but that does not change the fact that it was not admissible against the respondent.

[73] Second, the preliminary inquiry judge was clearly aware of the principle in Gagnon, Filiault and Mota, as was made clear in her consideration of the criminal organization offence in Count 2, which she incorporated into her reasons with respect to Count 8. [3] For example, she stated (at para. 71):

Conversations to which Kalonji was not a party can be used to provide context for other admissible evidence against him; however, those conversations cannot be used against Kalonji for the truth of their contents.

Later, she stated (at para. 77):

Not surprisingly, intercepts of calls between Mihailovic and Mitrovic add context to the calls between Kalonji and Mitrovic but the contents of those intercepts are admissible for the purpose of context only and not as evidence of Kalonji’s knowledge.

[74] During her consideration of Count 3 with respect to the co-accused Nguyen, the preliminary inquiry judge clearly considered the type of context evidence being discussed. After summarizing intercepted communications involving others, she stated (at para. 101):

None of the information summarized above can be used against Nguyen for the truth of its contents, but it does provide context to understand the subsequent intercepted communications between Nguyen and Mitrovic.

[75] When the preliminary inquiry judge’s reasons are read as a whole, it is clear that she was well aware that the acts and declarations of alleged co-conspirators could be considered as context evidence.

[76] Third, if the preliminary inquiry judge did wrongly treat the evidence of the May 21, 2016 conversation as inadmissible hearsay, this was an error in the application of the co-conspirator’s exception to the hearsay rule. As noted earlier, “any error with respect to the application of [the] rules [of evidence] … constitutes an error or law, not a jurisdictional error”: Deschamplain, at para. 17.

(iv) Evidence of the Nature and Quantity of the Controlled Substance

[77] The only part of the preliminary inquiry judge’s reasons that give me some concern are her comments at para. 179 that “the Crown has led no admissible evidence against Kalonji that the substance that he was selling was cocaine” and that there was “no admissible evidence against Kalonji that would allow a trier of fact to determine the quantity of the substance Kalonji was selling”. I do not agree with these conclusions. In my view, there was evidence that the substance being sold was cocaine. During the May 12, 2016 conversation between Mr. Mihailovic and Mr. Mitrovic, Mr. Mihailovic said “does he know how much he’s getting now, does he know 35.” That evidence, when combined with expert evidence respecting the price of a kilogram of cocaine, supports the inference that what was being sold was one kilogram of cocaine.

[78] While I do not agree with the preliminary inquiry judge’s conclusions respecting the nature and quantity of the substance, I do not view any error in this regard as jurisdictional in nature. The preliminary inquiry judge’s conclusion with respect to Count 8 was the result of her conclusion that while there was evidence that the respondent was a “mere supplier”, it would not be reasonable for a trier of fact to conclude that the respondent had entered into an agreement with Mr. Mitrovic and Mr. Mihailovic to achieve the common unlawful design of reselling the drugs. In other words, the preliminary inquiry judge was satisfied that a trier of fact could infer that the respondent sold drugs to Mr. Mitrovic and Mr. Mihailovic which they intended to resell, but was not satisfied that it would be reasonable to infer that this transaction was part of an agreement to achieve an unlawful objective. Any error respecting the nature and quantity of the substance does not, in my view, affect her conclusion in this regard.

[79] Furthermore, as noted earlier, the preliminary inquiry judge was aware that she could consider the acts and declarations of alleged co-conspirators as context evidence but for some reason was not prepared to infer from the conversations between Mr. Mitrovic and Mr. Mihailovic that what the respondent had sold to them was a kilogram of cocaine. As noted, I am of the view that she erred in this regard. However, her error resulted either from a misapplication of the co-conspirator’s exception to the hearsay rule or because she wrongly concluded that the nature and quantity of the substance could not be reasonably inferred from the evidence. In other words, this was either an error of law or an error as to sufficiency. Either way, the error was one within her jurisdiction and not reviewable on an application for certiorari.

D. Conclusion

[80] Had I been the preliminary inquiry judge, I may well have come to a different conclusion with respect to the respondents. That, however, is not the issue on this application. While the preliminary inquiry judge may have misapprehended some of the evidence, her reasons are not to be held to a standard of perfection any more than are those of a trial judge. In my view, when the preliminary inquiry judge’s reasons are read as a whole, it is clear that she understood and gave consideration to the inferences which the Crown submitted could reasonably be drawn and the evidence that was said to support those inferences. She considered that evidence and concluded that the inferences the Crown sought to have drawn were not reasonable. In doing so, she did not choose between competing inferences or otherwise usurp the function of the trier of fact. Any errors that were made were errors of law or errors as to the sufficiency of the evidence. In other words, the preliminary inquiry judge did what s. 548(1) of the Code required her to do and no more.

V. Disposition

[81] The applications are dismissed.

Justice P.A. Schreck Released: September 25, 2018.

Footnotes

[1] I have previously suggested that “where a preliminary inquiry judge’s conclusion is clearly unreasonable, this can be evidence that he or she made a jurisdictional error.” The Court of Appeal held that this statement “may or may not be reconcilable with the existing authorities” but found it unnecessary to make any final determination on this issue: R. v. Ali, 2017 ONSC 7267, at para. 31, aff’d 2018 ONCA 238, at para. 11. It would have been clearer if I had stated that a preliminary inquiry judge’s assessment of evidence that is marked by jurisdictional error may lead to a conclusion that is clearly unreasonable, but a clearly unreasonable conclusion does not necessarily mean that there has been jurisdictional error.

[2] The Information in the Applicant’s Record is unsworn and undated. However, the evidence discloses that the “take down” was in early June 2016 and I am assuming that charges were laid at around that time.

[3] As noted earlier, Mr. Kalonji was discharged on Count 2. The Crown abandoned its certiorari application with respect to that Count.