ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-0000027-00MO DATE: 20191129

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

JOHN FISHER Respondent

Counsel:

Ms. Caitlin Sharawy, for the Applicant Mr. Ravin Pillay and Ms. Elham Jamshidi, for the Respondent

HEARD: November 25, 2019

Justice J. Copeland

REASONS FOR JUDGMENT ON APPLICATION FOR CERTIORARI

Introduction

[1] The Crown brings an application for certiorari with mandamus in aid in relation to the decision of the preliminary inquiry judge that the evidence led at the preliminary inquiry was insufficient to meet the Shephard test, and discharging the Respondent on all counts. The charges at issue, eight counts, all relate to an allegation of possession of a loaded prohibited firearm.

[2] I will not summarize the evidence led at the preliminary inquiry, as it was thoroughly reviewed by the preliminary inquiry judge in his reasons. But as context I note that the allegations involved a handgun found wrapped in a T-shirt, inside a drawer, in the bedroom of a one bedroom basement apartment in a rooming house. The handgun was found during a search pursuant to a warrant based on information from a confidential informant.

[3] The Crown alleged constructive possession of the handgun by the Respondent. The Crown’s case for constructive possession was based on circumstantial evidence. The evidence led at the preliminary inquiry consisted of the evidence four police officers. Three of the officers made observations of the Respondent on three dates, including the date of execution of the search warrant, and including a description of the items found in the apartment when the search was conducted, and on the Respondent’s person when he was searched incident to arrest. The Respondent was not in the apartment at the time the handgun was found, but was apprehended nearby. There was evidence from which it could be inferred that the Respondent had entered the apartment earlier on the date the warrant was executed, and on a date two days earlier. The fourth officer took photos of various exhibits and the basement apartment.

[4] The Crown argues that the preliminary inquiry judge committed jurisdictional error. The Crown argues that the preliminary inquiry judge erred by drawing inferences favourable to the Respondent, or choosing between inferences. As a subsidiary argument, the Crown argues that the preliminary inquiry judge failed to consider the whole of the evidence, because a review of his reasons leads to the conclusion that he considered pieces of evidence in isolation.

Applicable law

[5] The Applicant and the Respondent agree on the law applicable to this review, and applicable to the role of a preliminary inquiry judge considering the issue of committal to trial. Where they disagree is on their reading of the reasons of the preliminary inquiry judge, and whether he committed jurisdictional error. Thus, I will only address the applicable law briefly.

[6] A preliminary inquiry judge is required to commit a defendant to stand trial if there is sufficient evidence. The test for sufficiency is the Shephard test, whether there is any evidence upon which a reasonably jury, properly instructed, could return a verdict of guilty: R. v. Shephard, [1977] 2 S.C.R. 1067, 1976 SCC 8.

[7] Where the evidence adduced at the preliminary inquiry is circumstantial (or has a significant circumstantial component), a preliminary inquiry judge must engage in a limited weighing of the whole of the evidence. Where the Crown relies on circumstantial evidence, the question is whether the elements of the offence which the Crown has not proven by direct evidence may reasonably be inferred from the circumstantial evidence. In engaging in this limited weighing, the preliminary inquiry judge does not draw inferences from facts, or assess the credibility or reliability of the evidence. But the preliminary inquiry judge must assess the reasonableness of the inferences that may be drawn from the circumstantial evidence. The preliminary inquiry judge must consider whether, if the Crown’s evidence is believed, it would be open to a reasonable jury to infer guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, 1 SCC 54 at paras. 21-23, 25, 29-30.

[8] In engaging in the limited weighing under Arcuri, a preliminary inquiry judge must not choose between (non-speculative) competing inferences. Inferences do not need to be compelling, or easily drawn to be reasonable. But inferences must be based on a process of reasoning from the evidence. Evidentiary gaps cannot be filled by speculation or conjecture.

[9] On an application for certiorari from a decision of a preliminary inquiry judge in relation to a discharge, the task of the reviewing court is narrow. A reviewing court may only intervene where the preliminary inquiry judge has exceeded their jurisdiction. A reviewing court cannot intervene merely because there is a legal error, or because the reviewing court would have come to a different conclusion than the preliminary inquiry judge: R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53 at paras. 19-20; R. v. Deschamplain, [2004] S.C.R. 601, 2004 SCC 76 at paras. 12-13, 23; R. v. Turner, 2012 ONCA 570 at para. 30; R. v. Manasseri, 2010 ONCA 396 at para. 28.

[10] Situations which constitute errors of jurisdiction include improperly weighing or choosing between competing inferences, drawing inferences favourable to the defendant, or failing to consider the evidence led at the preliminary inquiry as a whole: Deschamplain at paras. 18-19; Manasseri at paras. 28-29; R. v. Montour, 2002 ONCA 7196 (ONCA); R. v. Allison, 2016 ONSC 3073 at paras. 14-16.

Analysis

[11] In considering the Crown’s arguments, it is helpful to start with an overview of the preliminary inquiry judge’s reasons.

[12] The preliminary inquiry judge began his reasons by providing a very detailed summary of the evidence led at the preliminary inquiry (Reasons at pp. 2-10).

[13] He then set out the law in relation to his role a preliminary inquiry judge considering whether the evidence was sufficient to order the Respondent to stand trial. In particular, he instructed himself on the Shephard test. He instructed himself that he was not to assess the credibility or reliability of the evidence. He instructed himself that in assessing this case involving circumstantial evidence, he was not to weigh the various inferences that could be drawn from the evidence, but must consider any reasonable inferences that could be drawn in favour of the Crown’s position. He instructed himself that inferences must have an evidentiary basis, and that any inferential gaps must be bridged by evidence, not by conjecture or speculation (Reasons at pp. 10-12). The preliminary inquiry judge also correctly instructed himself on the elements of constructive possession (Reasons at p. 3).

[14] Crown counsel on the application fairly conceded that in his reasons the preliminary inquiry judge stated the law correctly in relation to his role as a judge considering whether the test for committal has been met.

[15] The preliminary inquiry judge then analyzed the evidence before the court. In doing so, he made lists of the evidence before the court, and gaps in the evidence (“what we have” and “what we do not have”): Reasons at pp. 12-15.

[16] He then reinstructed himself on the Shephard test. He stated that he was considering “the totality” of the evidence before him. He concluded that the Crown had failed to adduce sufficient evidence for committal. In particular, he found that although there was evidence that permitted a reasonable inference that the Respondent had access to the basement apart, and that the Respondent had entered the basement apartment, there was not evidence to bridge the inferential gap to draw the further inference that the Respondent had knowledge of the handgun hidden in the bedroom, or control over the bedroom or the handgun (Reasons at pp. 15-16).

[17] Crown counsel argues that the court should find jurisdictional error in the portion of the preliminary inquiry judge’s reasons where he lists evidence not before the court, under the heading, “What we do not have” (Reasons at bottom of p. 13 to top of p. 15). Crown counsel argues that a number of the points he lists, when taken together, show that he was drawing inferences favourable to the Respondent. She argues that this amounts to jurisdictional error, because it involves choosing between inferences.

[18] With respect, I disagree with this characterization of the preliminary inquiry judge’s reasons. I accept that as a matter of law, if the preliminary inquiry judge was choosing between competing (non-speculative) inferences, this would be jurisdictional error. But I do not read the preliminary inquiry judge’s reasons this way.

[19] As I have outlined above, the preliminary inquiry judge reviewed and correctly stated the law in relation to the elements necessary to prove possession, and in relation to his role as a preliminary inquiry judge considering if the evidence was sufficient to meet the test for committal to trial (Reasons at pp. 3, 10-12). He engaged in a detailed summary of the evidence led at the preliminary inquiry (Reasons at pp. 2-10). It was only after doing both of those things that the preliminary inquiry judge outlined the lists of : “what we have” and “what we do not have” in terms of evidence (Reasons at pp. 13-15). He then concluded that reviewing “the totality” of the evidence, the test for committal was not met, in light of a number of evidentiary gaps.

[20] In my view, the preliminary inquiry judge used the lists of what evidence was present and what gaps there were in the evidence as tools to consider the sufficiency of the evidence as a whole, where there may have been inferential gaps in the evidence, and whether the inferences advanced by the Crown were reasonable. In doing so, he properly considered the whole of the evidence, and engaged in the limited weighing of what reasonable inferences were available on the evidence, and whether a reasonable and properly instructed jury could find on the body of evidence led at the preliminary inquiry that constructive possession was proven beyond a reasonable doubt.

[21] This approach of listing evidence that is present, and gaps in the evidence is not an unusual tool in the reasoning process of preliminary inquiry judges when considering if there are inferential gaps in the evidence the Crown relies on in support of committal: Turner at para. 28; Allison at paras. 11-13, 19; R. v. Savoury, [2008] O.J. No. 2896 at paras. 16-18 (SC).

[22] In my view, the analysis set out at para. 28 of Turner is applicable to this case:

The application judge concluded that the preliminary inquiry judge focused on what was missing in the Crown’s case rather than considering whether the evidence was sufficient to meet the Sheppard test. While it is certainly true that the preliminary inquiry judge listed a number of gaps in the evidence, she did so, in my view, to satisfy herself that the evidence led by the Crown was incapable of filling those gaps in order to meet the Sheppard test. Put another way, she was assessing whether the inferences considered by the Crown were reasonable, which she was required to do. [emphasis added].

[23] I am not persuaded that the preliminary inquiry judge impermissibly engaged in choosing between non-speculative inferences. It is clear from reading his reasons as whole that the preliminary inquiry judge found that the evidence was sufficient to draw the inference that the Respondent had access to the basement apartment and had been in the apartment. However, his reasons make clear that the evidence of the Respondent’s connection to the apartment was not strong, and did not allow the drawing of the further inference that he lived there or that he was the sole occupant. In the context of the evidence connecting the Respondent to the apartment being tenuous, the preliminary inquiry judge also noted that none of the evidence connecting the Respondent to the apartment connected him to the bedroom where the gun was found hidden. The preliminary inquiry judge’s reasons are clear that given the very limited evidence of the Respondent’s connection to the apartment, the preliminary inquiry judge found that there was an inferential gap between that connection, and drawing a further inference that the Respondent knew about or had control over the gun hidden in the bedroom.

[24] In order for a reviewing court to intervene, there must be some basis on the record before the court, including the preliminary inquiry judges reasons, for the reviewing court to find that the preliminary inquiry judge exceeded their jurisdiction: Deschamplain at para. 24. In my view, reviewing the record before me, I am not persuaded that the preliminary inquiry judge impermissibly engaged in choosing between reasonable inferences. Rather, based on what he found to be gaps in the inferential chain, he found the evidence relied by the Crown was insufficient to order committal to trial.

[25] Nor do I accept Crown counsel’s argument that the preliminary inquiry judge failed to consider the whole of the evidence. My reasons are similar to my reasons for finding that the preliminary inquiry judge did not impermissibly choose between inferences.

[26] It is not in dispute that if a preliminary inquiry judge fails to consider the whole of the evidence led at the preliminary inquiry, he commits jurisdictional error: Dechamplain.

[27] In my view, the preliminary inquiry judge’s reasons do not reveal either that he failed to consider the whole of the evidence, or that he looked at pieces of the evidence in isolation. On the contrary, in my view, the preliminary inquiry judge engaged in a careful and thorough review of the evidence (Reasons at pp. 3-10, 12-15). Having done that, he then concluded that the evidence as a whole was insufficient to meet the test for committal (Reasons at pp. 12-16). He specifically referred to considering “the totality” of the evidence (Reasons at p. 15), and his detailed review of the evidence shows that he did so. I see no jurisdictional error in this regard.

[28] For these reasons, I am not persuaded that the preliminary inquiry judge committed any jurisdictional error. Crown counsel quite fairly acknowledged that an error by a preliminary inquiry in concluding that the evidence is insufficient to meet the test for committal is not jurisdictional error if the preliminary inquiry judge reached that conclusion after considering the whole of the evidence: Deschamplain at para. 23. In my view, the substance of the arguments advanced by Crown counsel amount to contesting whether the evidence led at the preliminary inquiry was sufficient to meet the committal test. While I am satisfied that the preliminary inquiry judge did not err in his consideration of the whole of the evidence and whether it was sufficient to satisfy the Shephard test, in any event, the errors advanced by Crown counsel are, in substance, not jurisdictional.

[29] The application is dismissed.

[30] I thank counsel for their focussed and helpful submissions.

Justice J. Copeland

Released: November 29, 2019

COURT FILE NO.: CR-19-0000027-00MO DATE: 20191129

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

JOHN FISHER Respondent

REASONS FOR JUDGMENT ON APPLICATION FOR CERTIORARI

Justice J. Copeland

Released: November 29, 2019