COURT FILE NO.: 18-5-182-MO DATE: 20190301 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – CARLITO TORRES-ARAY

Counsel: Paul Zambonini for the Crown Andrew Vaughan for the accused

HEARD: December 21, 2018

FAVREAU J. :

Introduction

[1] The respondent, Carlito Torres-Aray, was charged with a number of offences related to the possession of a firearm. At the conclusion of a two-day preliminary hearing, Justice B. Frazer of the Ontario Court of Justice discharged Mr. Torres-Aray on all charges.

[2] The Crown brings an application for certiorari and mandamus, requesting that the order discharging Mr. Torres-Aray be quashed and that an order be made directing the preliminary inquiry judge to commit Mr. Torres-Aray to stand trial on all charges.

Background facts

Events leading to the charges against Mr. Torres-Aray

[3] On April 15, 2018, in the context of an ongoing investigation into Mr. Torres-Aray's potential involvement in an earlier shooting, the police stopped a vehicle located in the parking lot of an Esso gas station.

[4] At the time, there were four people in the car, and they were all arrested. Dujon Andre Taylor was in the driver's seat and Mr. Torres-Aray was in the front passenger seat. Mr. Taylor's nephews, J.M. and K.T.B., were both in the back seat of the car.

[5] A handgun was found inside a black toque that was located on the floor of the driver's side of the car. Marijuana and digital scales were also found in the car.

[6] The police charged Mr. Taylor and Mr. Torres-Aray with a number of offences. All of the charges against Mr. Torres-Aray related to possession of the firearm, namely storage of a handgun without a licence contrary to section 86(1) of the Criminal Code, possession of a handgun without a licence contrary to section 91(3) of the Criminal Code, knowingly possessing a restricted firearm without a licence contrary to section 92(3) of the Criminal Code, occupying a vehicle knowing there was a restricted firearm in the vehicle contrary to section 94(2) of the Criminal Code, possession of a restricted firearm without a licence contrary to section 95(1) of the Criminal Code, careless storage of ammunition contrary to section 86(1) of the Criminal Code, possession of a firearm while prohibited from doing so contrary to section 117.01(1) of the Criminal Code, and failure to comply with a condition of probation not to possess a firearm contrary to section 733.1(1) of the Criminal Code.

Preliminary inquiry

[7] The preliminary inquiry in respect of the charges against both Mr. Taylor and Mr. Torres-Aray was conducted on August 8 and 9, 2018.

[8] The witnesses at the preliminary inquiry included J.M. and K.T.B. During the course of their evidence, both J.M. and K.T.B. gave evidence that, at the time of the arrest, Mr. Taylor was reaching down, saying that he wanted his shoes. They also both testified that they saw Mr. Torres-Aray reach toward the floor on the driver's side of the car, which they said they thought he was doing for the purpose of reaching Mr. Taylor's shoes.

[9] Both of them made reference to this more than once during their evidence.

[10] J.M.'s evidence included the following:

All we heard is "freeze", didn't say anything like it's police, it's nothing. I didn't know who it was. I'm like "Freeze", "What's going on?" And then they said, "You're being arrested for a gun charge." And I'm like "Gun? You didn't even search the car. How do you know there's a gun in the car?" And then - we just get pulled out, and then - no we don't get pulled out yet. Then - I guess we were reversing, and then I see my uncle start getting hit in the back of the head with a gun. And then he's like "I'm not resisting. I'm not resisting. I only want my shoes." And - I guess - I seen Lito - Carlito move like - to get the shoes, I was guessing - I'm guessing I'm getting his shoes to give to him, because that's what he was asking for, and then that's when I got pulled out of the car…

He looks back, and he's like "Freeze? For what?" And then I'm like "Freeze for what?" And then we start reversing, and then I look over to my left, and my uncle's getting hit in the head with the gun. And then he's like "I'm not resisting. I'm not resisting. All I want are my shoes." And then I seen Lito I think bending down to get the shoes, and then that was it - and then he gets pulled out of the car…

After that, my uncle say "I'm not resisting. I'm not resisting. I just want my shoes." And then I think Lito grabs - or like shuffles, and I think he grabs - like he's trying to reach his shoes, because my uncle drives without his shoes on. I thought he was giving him his shoes because it's snowing outside and he has no shoes on, no like sweater, jacket, none of that stuff. So I thought he was trying to give him his shoes…

Q. And he says "I'm just trying to get my shoes" at that point, or is it - tell us about that.

A. He's saying "I am not resisting" and he's getting hit in his head.

Q. Okay.

A. And then after, stops for like a fraction of a second, he's getting pulled out of the car, he's like "I'm just trying to get my shoes." And then he gets pulled out of the car, and then he gets hit some more, and then he's like "I'm not resisting. I'm not resisting. I just want my shoes."

Q. Okay, And Carlito, you said he - well what does he do?

A. I think he reaches down to like see if the shoes are at his feet, or the driver's feet.

Q. So he's reaching down in the - this is - well do you know what kind…

A. Kia.

Q. Kia. So he's reaching - he's in the front passenger seat?

A. Yes.

Q. And he's like bending down towards the floor?

A. Like sideways, like this.

Q. So again, you're - the witness is…

A. With one arm.

Q. The witness is - I just have to describe it. The witness is demonstrating that he is reaching with his left hand, kind of down - in front of him and down to the left?

A. Yes.

Q. All right. And you believe that he is looking for his shoes…

A. Getting the shoes.

Q. … or does he say something about the shoes?

A. I just thought he was going for the shoes, because that's what my uncle is asking for.

Q. Okay. But you see Carlito making motions with his left hand, down in front of him to the left.

A. Yes.

Q. While your uncle is being dragged out, or is he already dragged out?

A. Yes, being dragged out. [emphasis added]

[11] K.T.B.'s evidence included the following:

My uncle was saying "I want my shoes. I want my shoes, you know, I'm not even fighting. I'm not doing nothing." And as that all was going on, I remember the guy in the front, he was like moving, trying to get his shoes, or something like that.

And then after that, he kept on asking for his shoes, and then I remember - I remember the passenger - I think the passenger person was reaching to give him his shoes.

Q. The shoes - you said something about the other guy - the front passenger and the shoes. What can you tell us about that?

A. Nothing. Everything I said. I just remember my uncle saying "I want my shoes. I need my shoes. I don't have my shoes." And then that was it. I just - I'm pretty sure that he was trying to give my uncle his shoes. I'm not sure what happened, but - that's it.

Q. Well what we're interested in is what you saw. What did you see the front passenger guy doing?

A. I'm pretty sure he was reaching to give my uncle his shoes.

Q. And how was he doing that? Can you describe that for us? Where was he reaching?

A. I'm pretty sure my uncle's shoes was like underneath like the pedals. Like my uncle - my uncle always drives like that, always drives like that.

Q. Okay. Did you - well where did you see the front passenger reaching?

A. Like towards like the pedals, to give him his shoes.

Q. Okay. Down at the floor in front of where the driver's…

A. Yeah, where the pedals - where the pedals and brakes are, yeah.

Q. So you saw the front passenger person reaching there, you assume it was to get the shoes.

A. I'm pretty sure, yeah… [emphasis added]

[12] During argument, the Crown submitted that the evidence of J.M. and K.T.B. that they saw Mr. Torres-Aray "reaching" down into the area where the firearm was later found at the time of the arrest supported an inference for joint possession or constructive possession of the firearm by Mr. Torres-Aray. Specifically, the Crown submitted that, rather than reaching for Mr. Taylor's shoes as suggested by J.M. and K.T.B., an inference could be drawn that Mr. Torres-Aray was placing the gun in the driver's foot well, where it was later found by the police.

[13] At the conclusion of the hearing, the preliminary inquiry judge discharged Mr. Torres-Array. In doing so, he found that there was “no evidence” that Mr. Torres-Aray was in possession of the firearm. In reaching this conclusion, he made the following findings:

[13] In the present case, the firearm in question was located on the floor of the driver's side of the vehicle. The accused was seated - the accused, Torres-Aray, was seated in the right front passenger seat. The firearm was located secreted within a black toque, also located on the floor of the driver's seat, between the front edge of the seat and the pedals which operated the motor vehicle. No part of the firearm was visible until the upper edge of the toque was pulled back, as demonstrated in the photos contained in Exhibit 5. There is no evidence that the accused, Mr. Torres Aray, put the firearm where it was found. There is no evidence the accused knew there was a firearm in the vehicle, or where it was located. There is no evidence that the accused knew there was a firearm in the vehicle, or where it was located. [emphasis added]

Positions of the parties

[14] The Crown argues that the preliminary inquiry judge committed a jurisdictional error when he found that there was no evidence that Mr. Torres-Aray put the firearm where it was found. In particular, the Crown argues that, in making this finding, the judge improperly disregarded the evidence of J.M. and K.T.B. that they saw Mr. Torres-Aray reach toward the floor on the driver's side of the car at the time Mr. Taylor was pulled out of the car by the police. The Crown argues that an inference that could be drawn from this evidence is that Mr. Torres-Aray placed the gun on the driver's side of the floor at the time of the arrest.

[15] The defence argues that the preliminary inquiry judge did not commit a jurisdictional error, and that his finding that there was no evidence to support the charges against Mr. Torres-Aray was in fact consistent with the evidence during the preliminary inquiry.

Applicable legal principles

[16] Section 548(1) of the Criminal Code sets out the role of a judge on a preliminary inquiry:

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

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.

[17] In R. v. Sazant, 2004 SCC 77, at para. 16, the Supreme Court emphasized that a preliminary inquiry judge must commit an accused person to trial where "there is sufficient evidence upon which a properly instructed jury could convict". At para. 18, the Court also emphasized that it is not the role of the preliminary inquiry judge to weigh the evidence or to reject inferences that can be drawn from the evidence:

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] 1 S.C.R. 366, at p. 380.

[18] There is no right of appeal from a decision of a judge committing or refusing to commit an accused following a preliminary inquiry: Sazant, at para. 14.

[19] However, a preliminary inquiry judge's decision can be challenged by way of certiorari, and the reviewing court can only intervene where the preliminary inquiry judge committed a jurisdictional error: Sazant, at para. 14.

[20] In Sazant, at para. 25, the Court gave three examples of circumstances in which a preliminary inquiry judge loses jurisdiction:

Accordingly, there seem to be three possible interpretations of what the preliminary inquiry judge did, any of which would result in a loss of jurisdiction.

(1) First, the preliminary inquiry judge may have entirely misunderstood the elements of the offences of indecent assault and gross indecency and given effect to a non-existent defence, as suggested by my colleagues, Bastarache and Fish JJ. This interpretation, on its face, would be contrary to what the preliminary inquiry judge said about what he regarded as changes in the law of consent since "the 1970's". If indeed this was the basis of the preliminary inquiry judge's decision, it would also mean that the preliminary inquiry judge had never tested the Crown's evidence against the actual elements of the offences charged. In that event, the reasoning of this Court in Dubois, supra, at pp. 378-79, is applicable:

This is not a case where the reviewing judge merely thinks that the justice was wrong, in the sense that if the reviewing judge had been sitting at the preliminary inquiry, he would have reached a different conclusion as to the sufficiency of the evidence. It is a case in which the real complaint is that the exercise of weighing the evidence proceeded on an entirely erroneous basis in law, which in turn goes to the mandate issued by Parliament ... . [Emphasis added in original.]

(2) Second, the preliminary inquiry judge may have decided that the complainant's evidence was ambiguous in that it could be construed as an expression of "after-the-fact" regret rather than "during-the-fact" non-consent. However, if the preliminary inquiry judge preferred an inference favourable to the accused over an inference favourable to the Crown, then he would have exceeded his jurisdiction by deciding an issue reserved for the trial judge.

(3) Third, the preliminary inquiry judge on May 1, 2001 could simply have overlooked the evidence of non-consent that had been discussed with the Crown and the defence during earlier oral argument. If so, he would have failed to consider "the whole of the evidence" and would on that account as well have stepped outside his jurisdiction.

Analysis

[21] In this case, the Crown argues that the preliminary inquiry judge lost jurisdiction because he failed to look at the totality of the evidence, and in particular he failed to consider that an inference could be drawn that Mr. Torres-Aray was placing the gun in the area of Mr. Taylor's feet when he reached toward the floor on the driver's side of the car. The Crown argues that, if the jury believes this evidence, they could infer that Mr. Torres-Aray had knowledge and control of the gun for the purpose of the possession charges.

[22] I agree with the Crown that the preliminary inquiry judge committed a jurisdictional error. As reviewed above, Mr. Taylor's nephews both provided evidence that they saw Mr. Torres-Aray reach toward the floor on the driver's side of the car. While they speculated that he was trying to find their uncle's shoes, neither one said that they saw him specifically reaching for the shoes.

[23] While the Crown explicitly argued that the evidence of the nephews supported an inference that Mr. Torres-Aray placed the gun where it was ultimately found, the preliminary inquiry judge completely ignored this evidence, finding that there was “no evidence” that Mr. Torres-Aray put the gun where it was found or even had knowledge of the gun.

[24] The nephews’ evidence about Mr. Torres-Aray reaching toward the floor of the driver’s side of the car is circumstantial, rather than direct evidence, of possession. As held in R. v. Arcuri, 2001 SCC 54, at para. 23, a preliminary inquiry judge must engage in a limited weighing of evidence when dealing with circumstantial evidence:

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 par. 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.

[25] In R. v. Dwyer, 2013 ONCA 368, at para. 4, the Court of Appeal noted that:

Reasonable inferences are not necessarily likely or probable inferences. The inference that is most favourable to the Crown must be drawn at the preliminary inquiry stage. Difficult inferences to draw may still nonetheless be reasonable.

[26] In this case, the preliminary inquiry judge was required to consider the whole evidence, which included the nephews’ evidence, for the purpose of deciding whether the evidence could support an inference that Mr. Torres-Aray was in possession of the firearm. However, it was impermissible for him to go further and make a factual finding on that issue or assess credibility.

[27] It is hard to know from the decision whether the preliminary inquiry judge simply did not consider the evidence or whether he weighed it and concluded that he was satisfied that Mr. Torres-Aray did not place the gun where it was found. Either way, his failure to address J.M. and K.T.B.'s evidence is a jurisdictional error: see also R. v. Deschamplain, 2004 SCC 76, [2004] S.C.J. No. 73, at para. 34. As reviewed above, the failure to consider all of the evidence, which in this case included the evidence of J.M. and K.T.B., that Mr. Torres-Aray was reaching toward the area of the car where the gun was found, is a jurisdictional error. Even if the preliminary inquiry judge considered the evidence, but found that he was not persuaded that Mr. Torres-Aray was involved in hiding the gun or putting it where it was found, he engaged in a jurisdictional error by improperly weighing the strength of the evidence.

[28] The defence argues that no jurisdictional error was committed because J.M. and K.T.B.'s evidence was that they saw Mr. Torres-Aray "reach" toward the floor on the driver’s side of the car, and they did not testify that they saw him "put" something on the floor. The defence argues that the Crown ought to have specifically asked J.M. and K.T.B. if they saw Mr. Torres-Aray place the gun where it was found. While the evidence may not be as strong as if they had said they saw Mr. Torres-Aray put something on the floor, in my view it is evidence from which an inference can be drawn that he had knowledge of the firearm, and that he was trying to hide it or that he placed the firearm in the location where it was found.

[29] As held in R. v. Olubowale, [2001] O.J. No. 961 (C.A.), at para. 10, even if the inference is weak, “it cannot be said that there is not a scintilla of evidence to support it”.

[30] Accordingly, I find that the preliminary inquiry judge committed a jurisdictional error, and Mr. Torres-Aray’s discharge on all charges is quashed.

Remedy

[31] The Crown argues that, in addition to granting an order of certiorari, I should grant an order of mandamus, referring the matter back to the preliminary inquiry judge and requiring him to commit Mr. Torres-Aray for trial.

[32] I am satisfied that this is an appropriate case for mandamus.

[33] In R. v. S.K., 2014 ONCA 138, at para. 4, the Court of Appeal held that an order of mandamus is appropriate where a consideration of all the evidence makes committal inevitable; see also R. v. Thompson, [2005] O.J. No, 1124 (C.A.), at para. 21, and R. v. Ward-Jackson, 2016 ONSC 4574 (Sup. Ct.), at para. 56.

[34] In this case, in my view, an order to stand trial is inevitable. The evidence of the nephews, which was not considered by the preliminary inquiry judge in his decision, can clearly support an inference that Mr. Torres-Aray had knowledge and control of the firearm. In the instants before the arrest, at a time when the occupants of the car were being told by the police to “freeze”, Mr. Torres-Aray is seen reaching into the area of the car where the police subsequently found the gun. This evidence, if believed, may have an innocuous explanation. But it is certainly capable of supporting an inference that Mr. Torres-Aray was hiding or placing the gun in that location, which could lead to a finding that he had knowledge and control of the gun.

Conclusion

[35] In conclusion, the application is allowed on the basis that the preliminary inquiry judge committed a jurisdictional error. The discharge of Mr. Torres-Aray is quashed, and the matter is remitted back to the preliminary inquiry judge, requiring him to order that Mr. Torres-Aray stand trial on all counts with which he had originally been charged, namely Counts 1, 2, 3, 4, 5, 6, 7 and 8.

FAVREAU J.

RELEASED: March 1, 2019

COURT FILE NO.: 18-5-182-MO DATE: 20190301 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – CARLITO TORRES-ARAY

REASONS FOR JUDGMENT FAVREAU J. RELEASED: March 1, 2019