Court File and Parties

COURT FILE NO.: CR-20-112 DATE: 20200921

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.B. Defendant

Counsel: Raymond Williams for the Crown Daniel Molloy for S.B.

HEARD BY ZOOM CONFERENCE: July 27, 2020

RULING ON CERTIORARI APPLICATION

C. BOSWELL J.

OVERVIEW

[1] SB was pulled over by an officer of the Ontario Provincial Police in a routine traffic stop. He was evasive when questioned by the officer and soon found himself out of the driver’s seat and under arrest for obstruction of justice. A search of the vehicle yielded a loaded handgun under the front passenger seat. That seat had been occupied by TH. Directly behind her, in the rear of the car, was DF.

[2] All three occupants of the vehicle were charged with a variety of firearms offences. At the core of each firearm offence is the requirement of possession.

[3] At a preliminary hearing, the Crown asserted that all three occupants were in constructive possession of the handgun. But the presiding judge did not agree. He found that there wasn’t any evidence to commit SB and TH to trial on any possession-related offences. The Crown challenges the judge’s conclusions with respect to SB. The Crown asks this court to quash the order discharging SB and to direct the preliminary hearing judge to commit SB to trial on the firearms-related charges.

THE LEGAL FRAMEWORK

[4] The Crown’s application is for certiorari with mandamus in aid.

[5] Certiorari and mandamus are known as “prerogative writs”. That’s a term you don’t hear thrown around in conversation much anymore, even in legal circles. It is an antiquated means of describing a group of orders, all bearing ancient Latin names, that a superior court may use to compel an inferior court, or other government agency, to act within its jurisdiction.

[6] Six prerogative writs have developed over time. Certiorari is one. Mandamus is another. The balance are habeus corpus, procedendo, prohibition and quo warranto.

[7] Certiorari is an order made by a superior court to quash an order made by an inferior court (or other government agency) when the superior court finds that the inferior court exceeded its jurisdiction. In this instance, the Crown asserts that the preliminary hearing judge made one or more jurisdictional errors when he discharged SB in relation to the firearms offences.

[8] Mandamus is an order made by a superior court to direct an inferior court (or other government agency) to do a specific act within that body’s jurisdiction. In this instance the Crown asserts that this court should conclude that there was sufficient evidence to commit SB to trial on the firearms offences and direct the preliminary hearing judge to do so.

[9] This court has very limited authority to intervene in decisions made by provincial court judges at preliminary hearings.

[10] To be clear, an application for certiorari is not an appeal. Its focus is on correcting jurisdictional, rather than legal or factual errors. Former Chief Justice McLachlin described the limited scope of review on a certiorari application as follows, at para. 19 of R. v. Russell, 2001 SCC 53, [2001] S.C.J. No. 53:

…[R]eview on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review "only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction". (Internal citations omitted).

[11] What then, is a “jurisdictional error”?

[12] Watt J., as he then was, described jurisdictional error in R. v. Gray (1991), 1991 CanLII 7130 (ON SC), 68 C.C.C. (3d) 193 (Gen. Div.), at para. 35, as follows:

Jurisdictional error is not to be equated with error of law. By jurisdiction is meant the authority to decide a case, to determine an issue. Its essence is the authority to determine the issue, not the nature or correctness, actual or perceived, of the determination made…A court of limited jurisdiction either has jurisdiction over a particular subject-matter or it lacks it. Jurisdiction is not only held or retained when the court is right in its determination, only to be lost when it is wrong. It has often and rightly been said that, in a matter within its jurisdiction, a court of limited jurisdiction may misconstrue a statute (other than an enabling statute) or otherwise misdecide the law as freely and with as high an immunity from correction, except on appeal, as any other judge or court. (Internal citations omitted).

[13] Whether an alleged error is an error of law or a jurisdictional error is not always easy to determine. A review of the jurisprudence reveals that distinguished jurists regularly differ on whether an identified error is one of jurisdiction or simply an error of law within jurisdiction.

[14] For our narrow purposes here, we are concerned only with errors a preliminary hearing judge might make in the course of discharging an accused that are properly characterized as “jurisdictional”.

[15] The Supreme Court has provided guidance that is instructive in this narrow context.

[16] R. v. Sezant, 2004 SCC 77, [2004] S.C.J. 74 and R. v. Deschamplain, 2004 SCC 76, [2004] S.C.J. No. 73 are companion cases released together in November 2004. Both address jurisdictional error in the context of a preliminary hearing judge’s decision to discharge an accused.

[17] It is important to note that the jurisdiction of a preliminary hearing judge to either commit or discharge an accused is statutory in nature. It is found in 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.

[18] Having regard to this statutory jurisdiction, the Supreme Court, in Sezant and Deschamplain, identified a short list of errors properly characterized as jurisdictional. They include:

(i) Where the preliminary hearing justice fails to consider the whole of the evidence;

(ii) Where the preliminary hearing justice misunderstands the essential elements of the charged offence(s) and proceeds to consider the sufficiency of the evidence against the wrong standard; or,

(iii) Where the preliminary hearing justice weighs competing inferences, which is the exclusive domain of the jury.

THE PARTIES’ POSITIONS

[19] Crown counsel contends that the preliminary hearing judge fell into jurisdictional error in three respects:

(i) He failed to consider the whole of the evidence;

(ii) He favoured inferences favourable to SB over those favourable to the Crown. In other words, he weighed competing inferences; and,

(iii) He examined the evidence in a piecemeal way, rather than cumulatively. In other words, he failed to consider the whole of the evidence together.

[20] The preliminary hearing judge concluded that there wasn’t any evidence upon which a jury, properly instructed and acting reasonably, could convict SB. The Crown takes issue with this conclusion, asserting that (1) it was open to the presiding judge to conclude that the evidence was insufficient to commit SB to trial, but this was certainly not a case where there was no evidence; and, (2) any conclusion that the evidence was insufficient could only be made after a consideration of the whole of the evidence. In the Crown’s submission, had the presiding judge considered all of the reasonably available inferences, he would inevitably have come to the conclusion that the evidence was sufficient to commit SB to trial.

[21] Defence counsel takes the opposite position. He contends that the preliminary hearing judge did not fall into jurisdictional error. He argues that the judge’s ruling makes it clear that he did consider the whole of the evidence and thereby acted within his jurisdiction. In the circumstances, he had the right to be wrong. In other words, even if this court disagrees with the ruling, it has no authority to intervene.

DISCUSSION

[22] To understand the parties’ positions and my ruling, it is necessary to have an appreciation for the context in which the events unfolded, the evidence tendered at the preliminary hearing and the presiding judge’s consideration and treatment of that evidence.

The Traffic Stop

[23] SB and two others were travelling in a Hyundai Sonata in downtown Orillia in the early morning hours of September 14, 2018. SB was driving. Their vehicle caught the attention of an OPP officer on routine patrol because of the speed it was travelling at. The officer, PC Erikson, began to follow them. They stopped at an intersection on a red light. When the light turned green, SB squealed the tires and rapidly pulled away from the intersection. PC Erikson initiated a traffic stop.

Evidence at the Preliminary Hearing

[24] The preliminary hearing took place over two days in March 2020. Five witnesses testified, all police officers.

[25] PC Erikson testified as follows with respect to what occurred at the traffic stop:

(a) SB did not immediately roll down his window when PC Erikson approached. The officer had to tap on the door with his foot to get SB to roll it down;

(b) SB appeared nervous. He was not making eye contact with PC Erikson. Instead he was looking down and away;

(c) When asked for his driver’s license, SB said he left it at home;

(d) When asked for his address, SB said he could not remember it;

(e) When asked for his name, SB said it was Michael Brown;

(f) When asked for his date of birth, SB said July 18, 1997. He was asked a second time about his birth date and said July 10, 1997. He was asked a third time and gave a date different than either of the first two; and,

(g) SB was arrested for obstruction of justice. He was searched incident to arrest. The search yielded a green leafy substance in a plastic bag in his back pocket and a large amount of currency in his front pocket.

[26] PC Erikson had called for backup when he initiated the traffic stop. PC McIsaac and PC Woods attended the call. PC McIsaac testified at the preliminary hearing that he was standing proximate to PC Erikson as he questioned SB. He said, amongst other things, that:

(a) PC Erikson was told the Hyundai was rented. When he asked for the rental information he was provided with a rental agreement that did not match the vehicle or any of its occupants. It referred to a different car rented to someone named Daniel Shaver;

(b) SB was unable to explain how or if he knew Mr. Shaver or why he was in possession of the rental vehicle;

(c) After PC Erikson located what appeared to be marijuana on SB, the Hyundai was searched for evidence of more marijuana. A joint was located in a pink mug in the centre console. All occupants of the car were charged with possession of a controlled substance;

(d) During his search of the vehicle, PC McIsaac found a large sum of money in the front door panel on the driver’s side. He also found digital scales on the floor of the front passenger side and a loaded .22 calibre handgun under the front passenger seat;

(e) PC Erikson took the rear seat passenger, DF, into custody and conducted a pat down search. He located a large quantity of cash in DF’s upper front jacket pocket; and,

(f) When PC McIsaac yelled out that he had located a gun, DF struggled with PC Erikson, attempting to break free and flee.

[27] Each of PCs Erikson and McIsaac testified that, apart from his evasiveness in answering questions, SB was co-operative. He, for instance, exited the car when asked to do so.

The Impugned Ruling

[28] The presiding judge delivered his judgment on April 17, 2020. He committed DF to trial on the firearms charges, but discharged SB and TH on those same charges.

[29] The preliminary hearing judge began his ruling by identifying certain admissions that had been made, leaving possession of the firearm as the only live issue.

[30] He went on to accurately describe the test to be applied by a preliminary hearing justice. In particular, the question to be asked is whether there is any evidence upon which a reasonable jury, properly instructed, could return a guilty verdict. See R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para. 21.

[31] He then accurately set out the essential elements that must be established to prove constructive possession, by referring to the recent decision of Watt J.A. in R. v. Lights, 2020 ONCA 128, at para 47. Those elements are:

(i) That the accused has knowledge of the character of the thing (in this case the gun);

(ii) That the accused put or keeps the gun in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and,

(iii) That the accused intends to have the thing in the place for the use or benefit of the accused or another person.

[32] Finally, he went on to summarize the evidence touching upon the possession issue in relation to each accused.

[33] With respect to SB he identified the following evidence:

(a) SB was the driver of the Hyundai;

(b) The gun was found under the passenger seat, arguably within reach of SB;

(c) SB was not an authorized driver on the rental agreement produced to the police;

(d) Marijuana was located in SB’s pocket and in the centre console of the car;

(e) A loose bundle of cash was located in SB’s pocket; and,

(f) SB gave a false name and date of birth when questioned by the police.

[34] He also commented about evidence that was not present, including how long SB had been in the vehicle and what his relationship was with the other occupants.

[35] Once the evidence had been canvassed, the presiding judge conducted the following brief analysis:

(a) He found that simply being within arms length of an item not in plain view is not sufficient, on its own, to ground a finding of possession;

(b) He went on to ask himself if there was anything else about the driver’s actions that could lead to a reasonable inference that he had constructive possession of the gun. He held that giving a false name and having a small amount of marijuana are not enough to support an inference of possession, particularly where the police described SB as otherwise cooperative; and,

(c) Finally, he concluded that there was not any evidence upon which a reasonable jury properly instructed could return a verdict of guilty against SB. Accordingly, he discharged SB on the firearm-related offences.

[36] The central question on this application is whether the presiding judge committed one or more jurisdictional errors in the course of discharging SB on the weapons-related charges.

Analysis

[37] The Crown asserts three jurisdictional errors, as I set out above. But the main thrust of the Crown’s argument is that the presiding judge failed to consider the whole of the evidence. More particularly, that he failed to consider all of the circumstantial evidence tendered by the Crown, failed to consider all of the available inferences that reasonably arise on that circumstantial evidence, and instead considered only limited items of circumstantial evidence in a piecemeal fashion. I am going to focus my analysis on these assertions because they are sufficient to dispose of this application.

[38] With respect to the presiding judge, I agree with the position of the Crown.

[39] It must be recognized that it is unnecessary for any judge presiding over any type of proceeding to list, in his or her ruling, every piece of evidence adduced by the litigants. The duty to provide reasons is a functional one. See R. v. Sheppard, 2002 SCC 26 at para. 55. The amount of detail required in any given ruling is a function of the prevailing circumstances and the nature of the ruling.

[40] A judge conducting a preliminary hearing is certainly not required to give extensive reasons. From a functional point of view, the reasons will be sufficient if they demonstrate that the judge (a) has understood the nature of the case as argued; and (b) has met the mandatory statutory duty to consider the whole of the evidence. See R. v. Deschamplain, as above, at para. 34.

[41] I mention the duty to give reasons, not because there was any suggestion that the reasons were insufficient, but only to make the point that the fact that a judge does not mention an item of evidence in a ruling does not mean that he or she did not consider it. It would not be reasonable to conclude that a preliminary hearing judge did not consider “the whole of the evidence” simply because he or she did not meticulously reference every piece of evidence taken into account.

[42] Similarly, the simple act of identifying the evidence tendered by the litigants does not reasonably lead to the conclusion that the whole of the evidence has been taken into account in the analytical process of reaching a decision.

[43] It is clear from the reasons delivered from the presiding judge that he was well aware of the nature of the case as argued. His reasons focus in on the central issue, which was the sufficiency of the evidence of constructive possession.

[44] In terms of his consideration of the evidence, the presiding judge listed most of the evidence adduced by the Crown against SB. Defence counsel submit that the act of listing the evidence tends to support the conclusion that the preliminary hearing judge indeed considered it in reaching his conclusions. But again, there is a difference between identifying evidence and actually taking it into account. In my view, the preliminary hearing judge’s reasons demonstrate that he did not consider the whole of the evidence in reaching the decision to discharge SB.

[45] I am not going to get hung up on the comment by the preliminary hearing judge that “there is not any evidence upon which a reasonably jury, properly instructed, could return a verdict of guilty against this defendant”. While on its face, such a remark suggests that the presiding judge found no evidence that would support a conviction, in my view, he was merely parroting the language of Arcuri.

[46] That said, the analysis of the presiding justice makes it apparent that he considered only limited parts of the circumstantial evidence and ignored other important parts. Moreover, he did not recognize that reasonable inferences may build on one another in an inferential chain of reasoning.

[47] In particular, the presiding judge considered whether proximity to the weapon under the passenger seat was sufficient, on its own, to ground committal. He correctly concluded that it would not be, but of course a jury would never be instructed to consider that sole piece of circumstantial evidence in isolation.

[48] The presiding judge correctly went on to assess whether there was other evidence that might lead to a reasonable inference of constructive possession. He considered two pieces of circumstantial evidence in this regard: the giving of a false name and the possession of a small amount of marijuana. He also mentioned that there was no evidence of the connection between the Hyundai’s occupants or about how long SB may have been driving the Hyundai. That non-evidence cannot, of course, fill an inferential gap.

[49] There remains a significant amount of circumstantial evidence that appears not to have factored into the presiding judge’s analysis. Before I canvass that evidence, and its significance, I think it important to highlight some of the basics of the law of evidence as it relates to the consideration of circumstantial evidence.

[50] Circumstantial evidence is indirect evidence. In other words, proof of circumstantial evidence does not directly establish the fact in issue. Circumstantial evidence requires an extra step to bridge the gap between the evidence and the fact it is offered to prove. That extra step is the drawing of an inference.

[51] Inference drawing involves inductive reasoning: the drawing of conclusions from established facts measured against the uniformity of prior human experience.

[52] The process of inductive reasoning – of inference drawing – must be grounded in one or more established facts. A proper inference is one reasonably drawn from a fact or group of facts established in the evidence. An inference that purports to be drawn from insufficient established facts is not a proper inference at all. Rather it is nothing more than conjecture or speculation. See R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at para. 52.

[53] In the American case, Tose v. First Pennsylvania Bank, N.A., 648 F. 2d 879 (U.S. C.A. 3rd Cir. 1981), Aldisert J. described the drawing of reasonable inferences as the following of a logical line between an established fact and the ultimate fact to be proven. That logical line is a function of human experience:

The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts….

[54] In summary, a proper inference is a conclusion that reasonably arises, as a matter of logic and human experience, from a fact or facts established in the evidence. See R. v. Figueroa, 2008 ONCA 106 at para. 33.

[55] A judge presiding at a preliminary hearing proceeds on the basis that the jury accepts the evidence tendered by the Crown and draws the inferences most favourable to the Crown.

[56] In this case, the Crown tendered evidence which included, as I have noted:

(a) That SB was the driver of the Hyundai in issue. In other words he was in possession and control of the vehicle where the gun was located;

(b) The gun was arguably within arm’s reach of him;

(c) When pulled over by the police SB was evasive – he required prompting to roll down his window; he appeared nervous; he provided no identification; he was unable to remember his home address; he gave a false name and three different dates of birth; and he was unable or unwilling to explain how or why he was in possession of the Hyundai; and,

(d) There was evidence not only of drug possession, but also of drug dealing. SB had marijuana on his person. There were significant sums of cash found on SB’s person and in a compartment in the driver’s door where he was seated. There were digital scales in plain view on the floor of the front passenger seat. In addition, the backseat passenger, DF, had a large sum of cash on his person. In the result, there is evidence consistent with a joint enterprise of drug dealing involving at least SB and DF.

[57] Knowledge and control are essential elements of constructive possession. See R. v. Morelli, 2010 SCC 8. Earlier I set out the specific elements that must be proven to establish knowledge and control in the context of an alleged constructive possession.

[58] The question for the preliminary hearing judge was whether the circumstantial evidence tendered by the Crown was reasonably capable of supporting inferences that SB (i) knew of the gun and its character; (ii) placed the gun in the car or kept it there; and (iii) intended that it be there for his or another person’s use.

[59] In my view, had the preliminary hearing judge considered the whole of the evidence, he would have reached the conclusion that there was sufficient evidence for committal.

[60] I begin with the conduct of SB. It is undeniably consistent with a number of possible inferences. It may be perfectly natural for a young person, particularly a young black man, to be anxious about interactions with the police. Another reasonable inference may be that SB was concerned about the marijuana in the car, even though it was a minimal amount and even though possession of marijuana was about to be decriminalized. But there is a clear inference available, which is much more favourable to the Crown, and which should have been considered by the preliminary hearing judge. Specifically, that the level of SB’s evasiveness is consistent with a person who is trying to hide significant wrongdoing. There is a readily available inference that SB was nervous and evasive because he knew there was a gun in the car.

[61] Moreover, there is ample evidence, as I set out, which would reasonably support the inference that SB was engaged in drug dealing. It is widely known that guns and drugs go hand in hand. As Watt J.A. observed in R. v. Simon, 2010 ONCA 754, “handguns and drug deals are frequent companions, but not very good friends.” Whether it is a matter of common human experience or of judicial notice, drugs and guns are frequently intertwined.

[62] When considered as a whole the evidence reasonably supports inferences that SB was involved in a common unlawful venture to deal in unlawful substances; that possession of a loaded handgun was an element of the common unlawful venture; and that SB knew of the presence of the gun in the car. It further supports the conclusions that he either put the gun in the car or that he kept it there for his or another person’s use.

[63] The strength of these available inferences and whether the jury chooses to draw them are matters within the exclusive domain of the jury.

[64] Defence counsel argues that there is an inconsistency in the approach the Crown has taken to SB’s discharge and the discharge of TH. I disagree. There are significant differences in the evidence. There is insufficient evidence, even if believed, to support the inference that TH had knowledge or control of the gun.

[65] In my view, the failure to consider the evidence as a whole and the inferences that were reasonably available from SB’s evasiveness and involvement in drug dealing led the preliminary hearing judge astray. The failure to consider the evidence as a whole was a jurisdictional error, subject to review by this court.

[66] In the result, the preliminary hearing judge’s discharge of SB is quashed. The matter is remitted back to the preliminary hearing judge with a direction that SB be committed to trial on the firearms offences, to wit: possession of a handgun for a purpose dangerous to the public peace; possession of a firearm without being the holder of a license to possess it; being an occupant in a vehicle in which he knew there was a firearm; possession of a loaded, prohibited firearm; possession of a firearm where the serial number has been defaced; and possession of a restricted weapon knowing that it was obtained by the commission of an offence.

Boswell J.

Released: September 21, 2020.