FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] On 28 January 2020, the applicant was committed for trial on numerous charges including carrying a loaded restricted firearm, possession of a weapon dangerous to the public peace, carrying a concealed weapon and aggravated assault. He brings a certiorari application to have his committal on carrying a concealed weapon and aggravated assault quashed on the basis that the judge committed jurisdictional errors.

[2] For the following reasons, I dismiss the application.

The Crown’s Case

[3] The applicant and the complainant were married but on the date of events had been separated for approximately one year. On 8 March 2018, the applicant assisted the complainant and their son, Kadeem, in moving into a residential apartment on Weston Road in Toronto. The applicant and complainant operated a business on the main floor of the building and the complainant intended to reside in a second-floor apartment with one or more of their children.

[4] Shortly after the applicant arrived at the premises, he and the complainant became involved in an argument that evolved into a physical altercation where the applicant assaulted the complainant. The fight was broken up by Kadeem. The complainant left the scene and went upstairs to the second floor to call the police but discovered that her mobile phone’s battery was dead. As she felt threatened, the complainant picked up a knife and placed it in her blouse.

[5] Very soon afterwards a second disagreement took place on the second floor of the building near a set of stairs, where both the applicant and his son were standing. The complainant testified that she saw the applicant was carrying a gun on his waist and saw him motion towards it as if he was going to remove it.

[6] Kadeem testified that he saw the applicant draw a firearm and point it in the “up” position and heard the sound of the gun being “racked”. Kadeem intervened to push his mother away from the applicant. The complainant broke into a run and as she reached the bottom of the staircase, she fell and broke her ankle.

[7] The applicant fled the scene. When police arrived, they discovered a Smith and Wesson handgun which was loaded with ammunition.

[8] After the preliminary inquiry, the judge committed on the charges noted above. The applicant challenges the committal of only the aggravated assault and the carrying a concealed weapon charges.

LEGAL PRINCIPLES

[9] The Criminal Code provisions relating to committal can be found in subsection 548(1), which reads 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.

[10] If there is sufficient evidence of criminal charges upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit an accused person to stand trial on those charges: United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080. The threshold at the preliminary inquiry stage is not high: the test is whether there is “any evidence” on which a jury properly instructed could return a guilty verdict: R. v. Wilson, 2016 ONCA 235, at para. 21.

[11] A preliminary inquiry judge is not permitted to weigh the evidence or make credibility findings. If the Crown has adduced direct evidence on all elements of the offence, the preliminary inquiry judge must commit the accused even in the face of exculpatory evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 29.

[12] An application for certiorari does not involve the reviewing judge substituting their decision for that of the preliminary inquiry judge. Upon review, the preliminary inquiry judge’s decision may only be interfered with if a jurisdictional error is shown: R. v. Manasseri, 2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28. The test is whether there is a “scintilla of evidence” upon which the preliminary inquiry could conclude that committal is justified: R. v. Martin, 2001 CanLII 4971 (ON CA), [2001] O.J. No. 4158 (C.A.), at para. 3.

[13] There is a distinction, however, when the Crown relies upon circumstantial evidence to justify committal. In these circumstances, the preliminary inquiry judge is permitted to engage in a “limited weighing” exercise. When they do so, the judge does not draw inferences from facts or assess credibility but evaluates “the reasonableness of the inferences to be drawn” from the circumstantial evidence: Arcuri, at paras. 29-30. Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: Wilson, at para. 24; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18.

[14] If there is no evidence on an essential element of the charge, it is a jurisdictional error to commit an accused for trial: Shephard, at p. 1080. It is also important to note that, on review, the preliminary inquiry judge’s determination of the sufficiency of evidence is entitled to the greatest deference: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48.

DID THE PRELIMINARY INQUIRY JUDGE COMMIT JURISDICTIONAL ERRORs?

1. Carry Concealed Weapon

[15] Section 90(1) of the Criminal Code reads as follows:

90 (1) Every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed.

[16] Here, the applicant argues that there was no evidence that the firearm brandished by the applicant was ever concealed.

[17] In committing the applicant for trial, the preliminary inquiry judge explained his reasons in the following manner:

It is reasonable to assume that Mr. Tulloch knew that the firearm he was [sic] possession of was a weapon as contemplated in the section. Again, the evidence supports the inference that the firearm was hidden by Mr. Tulloch, at least from the time that he arrived at the office residence, until the time that he brandished it in the presence of Ms. Lodge-Tulloch and Mr. Lodge-Tulloch. As well, the intent to conceal the firearm so that it would not be noticed would be easily inferred from the evidence of the observations that were made of Mr. Tulloch and Ms. Lodge-Tulloch. They - when they made observations of Mr. Tulloch, they did not see any firearm on his person. Accordingly, Mr. Tulloch will be committed to stand trial in relation to Count 2.

[18] The applicant argues that the judge erred by using the absence of evidence to find evidence of the essential element of the offence. In other words, the judge reasoned that even though no witness reported seeing the weapon hidden, the fact that it appeared means that it must have been concealed. I do not agree that the judge used the evidence in this fashion.

[19] In his reasons, which attract deference, the judge found that both the complainant and her son had the “opportunity to observe the accused at very close range, prior to the ultimate confrontation” and neither reported seeing a gun until it was brandished by the applicant. The judge also made clear that:

The failure of both persons to notice a gun [prior to the ultimate confrontation] suggests that he had had the gun hidden from view during his previous interaction with them. There is no evidence which would support an inference that the accused obtained the gun from some location in the office or apartment just in advance of brandishing it in the presence of Ms. Lodge-Tulloch and Mr. Lodge-Tulloch at the second-floor landing. Such an inference could only be based on speculation. There is no evidence to suggest that a firearm of the same type was in the office apartment in advance of the accused’s attendance there.

Furthermore, the evidence suggests that the interval of time between the first physical altercation on the main level, and the second physical alteration on the second-floor landing was a matter of seconds – which provided Mr. Tulloch with a very limited opportunity to [sic] a firearm that may have been located somewhere in the office or apartment.

[20] In other words, the judge considered the whole of the evidence and ruled out the possibility that the applicant had obtained the gun after arriving at the residence or between the two fights that occurred. Since the witnesses did not observe the gun until “seconds” before the applicant produced it, one inference that could be drawn was that he had concealed the gun prior to brandishing it.

[21] That inference was clearly available and I find that the judge made no error in relying upon it.

2. Aggravated Assault

[22] The applicant further argues that the committal for aggravated assault was an error because even though the applicant’s actions constituted some evidence of assault, there was no evidence of the essential elements of aggravated assault.

[23] The issue to be decided on this point is whether the applicant’s actions in brandishing the firearm caused the injuries sustained by the complainant when trying to escape.

[24] Aggravated assault is defined by s.268(1) of the Criminal Code which reads as follows:

268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

[25] In this case, the applicant does not dispute the existence of evidence that he assaulted the complainant by brandishing the gun. However, he argues that there is no evidence that the injury in this case -- the Crown’s allegation of wounding, maiming or disfigurement -- was caused by the assault. Nor, says the applicant, do the facts support any evidence of the required mental element for aggravated assault.

[26] In R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at para. 22, the Court defined the mental element of aggravated assault as being “[t]he mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being wilfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm”. See also: R. v. Godin, 1994 CanLII 97 (SCC), [1994] 2 S.C.R. 484, at p. 485; R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, at para. 95.

[27] The Crown is required to prove objective foreseeability of the risk of bodily harm resulting from the assault but not objective foreseeability of the risk of the actual injury suffered: R. v. L.P. (2003), 2003 CanLII 34564 (ON CA), 172 C.C.C. (3d) 195, 168 O.A.C. 170 (C.A.), at para. 15.

[28] With respect to causation, the Crown must prove that the assault in this case - the brandishing of the gun - was a significant contributing cause to the injury sustained by the complainant: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paras. 71-3.

[29] Here, the applicant argues that there is no evidence of an objective foreseeability that the assault by brandishing the gun could cause the risk of bodily harm.

[30] I reject this argument. As the preliminary inquiry judge reasoned, in these factual circumstances where the applicant and the complainant were at the top of the stairs on the second floor, it was entirely foreseeable that the complainant would seek to flee in a hurried manner down the stairs and might hurt herself in doing so. In other words, the Crown could ask the jury to draw an inference of the required objective foresight.

[31] It should be remembered that the inference need not be a likely or probable inference. Even if the inference is one that is difficult to draw, any favourable inference to the Crown must be drawn when determining committal for trial: R. v. Dwyer, 2013 ONCA 368, at para. 4.

[32] Nor, as noted, need the Crown prove that the applicant would objectively foresee the actual injury that occurred.

[33] Applying Nette, there is clearly some evidence that the applicant’s actions were a significant contributing cause to the complainant’s injuries as the complainant’s flight down the stairs and subsequent ankle injury were the result of the perceived threat posed by the applicant holding the gun.

[34] For these reasons, the application is dismissed.

S.A.Q. Akhtar J.

Released: 6 October 2020

COURT FILE NO.: CR-20-50000059-00MO

DATE: 20201006

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NORMAN TULLOCH

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Tulloch, 2020 ONSC 6069

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

Introduction

The Crown’s Case

LEGAL PRINCIPLES

DID THE PRELIMINARY INQUIRY JUDGE COMMIT JURISDICTIONAL ERRORs?

1. Carry Concealed Weapon

2. Aggravated Assault

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 4

Legislation 3