ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Peter Maund for the Applicant Crown
- and –
J.B. (A Young Person)
Brian Kolman for the Respondent Defendant
HEARD: November 20, 2020
Section 110 of the Youth Criminal Justice Act prohibits the publication of the name of J.B. or any other information related to J.B. that would identify J.B. as a young person dealt with under this Act.
PUBLICATION IS BANNED PURSUANT TO S. 517(1) OF THE CRIMINAL CODE WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES
RULING ON APPLICATION BY THE CROWN FOR CERTIORARI WITH MANDAMUS IN AID
[From the Discharges entered by the Honourable Justice McCallum July 24, 2020 on One Count of Robbery and One Count of Point Firearm]
D.E HARRIS J.
1The Applicant Crown applies for certiorari with mandamus in aid to require the preliminary hearing judge to commit the Respondent to trial with respect to robbery and point firearm charges upon which he was discharged at the preliminary inquiry.
2In my view, with respect, the preliminary hearing judge erred in not committing the Respondent to trial on the two charges. However, the Crown must go further and demonstrate that the error of the preliminary hearing judge took him outside of his jurisdiction. The Crown, in my view, has failed to do so. The application must therefore be dismissed.
THE EVIDENCE
3The criminal offences in this case are based on a carjacking allegation. At around midnight on August 25, 2019, Dalia Nayef was sitting in her Kia Soul outside Credit Valley Hospital waiting for a friend. She noticed a black Honda parking close to her vehicle. Soon after, a man pointed a gun at her through her half open driver’s window and forcibly removed her, taking her place in the driver’s seat. Another man entered the front passenger seat. They drove off in the vehicle. The black Honda that had arrived moments before the robbery followed the Kia. Ms. Nayef called the police and told them what had happened.
4Ninety minutes later, at 1:33 a.m., Peel Police officers located the stolen vehicle in northeast Brampton. It was next to a black Honda Civic. Police stopped both vehicles and arrested three men on the scene. Hayden Pierce ran from the Kia and allegedly discarded a firearm. He was arrested shortly after.
5The Respondent was found in the back seat of the stolen Kia. Next to him was a backpack containing his cell phone and a small, black, loaded .38 handgun. He is charged with possession of the firearm and was committed to trial on consent with respect to it. Anthony Powell was arrested exiting the front passenger seat of the Kia. Also arrested was Shane D’Sousa who was driving the Honda.
6Ms. Nayef described the two men she saw but the descriptions were quite general. The gun was black with a barrel of 10-12 inches long. It appeared heavy; she could tell it was metal when it was pushed against her chest. Hayden Pierce’s fingerprint was found on the outside of the Kia driver’s door.
7Ms. Nayef’s bank cards and driver’s licence which she had left in the Kia when she was carjacked were found by the police in the Honda post-arrest. Mr. Pierce’s bank card was also found in the Honda as well as a .38 calibre shell casing which fit the gun found in the Respondent’s backpack. Near the scene, in the backyard of one of the houses, a loaded .357 Magnum Blackhawk revolver was found. This is alleged to be the weapon Pierce discarded as he was fleeing.
8Cell phone records were tendered at the preliminary inquiry. They show Pierce’s phone calling the Respondent’s phone at 10:23 p.m. on the night of the offence and the Respondent phoning him back at about 10:40 p.m. The Pierce phone, from about 10 p.m. until 11 p.m. was also in contact with both the Powell phone and the D’Sousa phone. The Crown argued that the absence of interaction in the time period around the carjacking showed that all four were together at that time.
THE REASONS FOR DISCHARGING THE RESPONDENT
9The preliminary hearing judge found that the gun used to threaten Ms. Nayef was consistent with the gun discarded by Hayden Pierce, the .357 magnum. On the central question in this application, the judge said at pp. 15-20,
… this court finds that the descriptors given by Ms. Nayef are consistent in some ways with J. B. However, the descriptors are so general, the court finds that they amount to no evidence of the identity of her two assailants. This lack of useful identification evidence prevents the prosecution from bridging the temporal evidentiary gap for the reasonable inference that the prosecution asks the court to make. The court does not see that there is a case of competing inferences.
The question is after considering the totality of the evidence can a reasonable inference be drawn that Mr. B. was in the company of the people who committed the carjacking at midnight? Or is there an evidentiary gap in the totality of the evidence?
In this court's view, on the totality of the evidence, including the phone summary, the fact that Mr. B. is arrested in the back seat of the stolen Kia vehicle with a loaded gun in the circumstances noted, nearly an hour-and-a-half after the carjacking does not allow a reasonable inference to be drawn that he was with the culprits at the scene of the crime 90 minutes earlier. One might speculate that he was at the scene but that is not enough…
…There are too many evidentiary gaps, including the aforementioned lack of any useful descriptors of the culprits and a lack of cell phone records locations to allow the court to conclude that there is a reasonable inference to be drawn from the totality of the evidence that on the night in question Mr. B. is in the company of Mr. Pierce as a party to the carjacking as one of the two males that Ms. Nayef saw that evening.
The passage in time of one hour and 30 minutes does not, in this court's view on the totality of the evidence, allow the court to reasonably infer that Mr. B. was in possession of a firearm at the time of the robbery. The court has already concluded that there is no evidence for the court to reasonably infer that Mr. B. was at the crime scene. But, even if the court were to conclude otherwise, as noted by the Supreme Court of Canada in the case of R. v. Dunlop and Sylvester, 1979 20 (SCC), [1979] 2 S.C.R. 881: “...Mere presence at the scene of a crime is not sufficient to ground culpability...”
WAS THE PRELIMINARY INQUIRY JUDGE IN ERROR?
10It may be useful to approach the Crown’s application in two stages: 1. Did the judge err in finding that there was insufficient evidence to commit on the robbery and point firearm charges?; and, if yes, 2. Was this error of a jurisdictional nature?
11On the first question, with respect, I believe the preliminary hearing judge was in error. These are the main primary facts: 1. At least three people were involved in the carjacking—the man with the gun, the person who got into the front passenger seat, and the driver of the Honda. There may have been others in the Honda besides the driver, Ms. Nayef could not tell; 2. Both the Honda and the Kia were discovered by the police together at 1:33 a.m., an hour and a half after the carjacking; 3. Four men were arrested from the Honda and the Kia, including the Respondent; 4. When he was arrested, the Respondent was in the backseat of the Kia and was found in possession of a .38 revolver; 5. The Respondent was in contact with another arrestee, Hayden Pierce, by cell phone an hour and a half before the carjacking. Pierce was also in contact between 10 p.m. and 11 p.m. with the other two men arrested by the police before the offence.
12This evidence, in totality, was in my opinion sufficient to infer the Respondent’s guilt with respect to the carjacking. There was association evidence from the cell phone records not too long before the carjacking linking the Respondent to Pierce and Pierce to the other two men. The circle was closed by the arrest of the four men together after the carjacking. They were in contact before the offence and were found together with the stolen car and the black Honda used in the crime after the offence. A line of continuity connected the before with the after. From the contact before the offence to the group association after, in the context of all of the evidence, a reasonable inference could be drawn that the four men, including the Respondent, were together at the time of the carjacking. There was a short time span between the phone contacts, the carjacking and the arrests.
13The picture is completed by the discovery of the Respondent in the backseat of the stolen Kia just 90 minutes after the robbery. A permissive inference akin to that generated by the “doctrine of recent possession” would allow a finder of fact to conclude that the Respondent was present during the offences committed against Ms. Nayef.
14Justice McIntyre, in the leading case of R. v. Kowlyk, 1988 50 (SCC), [1988] 2 S.C.R. 59 (S.C.C.), described the doctrine of recent possession this way,
Upon proof of the unexplained possession of recently stolen property, the trier of fact may — but not must — draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that a question could arise as to whether the accused was a thief or merely a possessor, it will be for the trier of fact upon a consideration of all the circumstances to decide which, if either, inference should be drawn.
15The recent possession inference does not require a finding of control of the car in the present situation. The viability of the inference is posited on the “recency” of the possession, the rarity of the item and the readiness with which it can be passed hand to hand or transferred: Saieva v. R., 1982 51 (SCC), [1982] 1 S.C.R. 897, [1982] S.C.J. No. 44 (S.C.C.) at para. 11; R v. Farnsworth, 2017 ABCA 358, 356 C.C.C. (3d) 255 (Alta.C.A.) at para. 7; R. v. Bakos, 2008 ONCA 712, [2008] O.J. No. 4067 (Ont. C.A.) at para. 21.
16The concept of recency is “relative and incapable of any exact or precise definition”: Farnworth at para. 7. In this instance, however, there can be no question that occupying the stolen car 90 minutes following its theft was exceedingly recent. One old case cited with approval in Kowlyk, R. v. Exall (1866), 4 F. & F. 922, 176 E.R. 850 at para. 2 states,
If the interval has been only an hour or two, not half a day, the presumption is so strong, that it almost amounts to proof; because the reasonable inference is, that the person must have stolen the property. In the ordinary affairs of life, it is not probable that the person could have got possession of the property in any other way.
17In Bakos, the Court of Appeal held that four and a half months for stolen motorcycle parts was sufficiently recent to make the inference available. In this instance, the Kia was a one-of-a-kind item. There was always a chance that after being stolen it had been passed on to other men. But that is certainly a much weaker inference than the inference that the people associated with the Kia and the Honda at the time of the arrest were the same people involved in the carjacking of it 90 minutes before. There was no obvious evidence of an intervening circumstance that may have broken the circumstantial chain. Moreover, there were at least three men involved in the carjacking and four men later arrested in the Kia and the Honda. This similarity in numbers was of some assistance in showing that the carjackers were the same people who were found in possession of the vehicle 90 minutes later. And the cell phone evidence discussed above bolstered all of these inferences.
18Furthermore, with respect, the preliminary hearing judge’s invocation of R. v. Dunlop and Sylvester, 1979 20 (SCC), [1979] 2 S.C.R. 881 was, in my opinion, also in error. In another carjacking case, R. v. Carrington, 2017 ONCA 2, [2017] O.J. No. 16 (Ont.C.A.), a man confronted the victim with a gun, took his keys, and then assumed the driver’s seat in the victim’s car. A second man unsuccessfully demanded the victim’s cell phone and then got in the front passenger seat. A third man, Carrington, got into the backseat and the car then drove away.
19It was argued on appeal that Carrington’s presence, in the absence of positive acts of aiding or abetting, amounted only to passive acquiescence. Justice Simmons disagreed, holding,
While knowledge of another’s intent to commit a crime and mere presence at the scene do not lead automatically to a finding of aiding and abetting, such factors can be evidence of aiding and abetting: R. v. Dunlop, 1979 20 (SCC), [1979] 2 S.C.R. 881 (S.C.C.), at p. 896; R. v. McKay, 2012 ABCA 310, 84 Alta. L.R. (5th) 404 (Alta. C.A.), at paras. 21-22. Here, by getting into the victim’s car, at a minimum, the appellant both abetted, and demonstrated an intention to abet, the other men in robbing the victim of his car. This is not a case where the appellant was a mere bystander. He took an active step of getting into the victim’s car that supported the other men in their endeavor, namely, depriving the victim of his car through the use of threats. To be guilty as an aider or abettor, all that is necessary is that the accused intended the consequences that flowed from his or her aid to the principal offender; it is not necessary to show that he or she desired or approved of the consequences: R. v. Greyeyes, 1997 313 (SCC), [1997] 2 S.C.R. 825, 8 C.R. (5th) 308 (S.C.C.), at para. 37. The fact that the appellant’s conduct would aid the other men in their endeavour was patent; nothing in the evidence rebuts the conclusion that he intended the consequences of his actions.
24 Further, and in any event, the trial judge’s conclusion that the appellant acted in concert with the other men in using an imitation firearm while attempting to commit a robbery is supported by the appellant’s presence at the scene prior to the night-time carjacking, the general similarity in dress of the three men, the appellant’s presence at the scene and ability to observe the events as they unfolded, the appellant’s conduct in getting into the victim’s car, driving away with the other men and fleeing with one or more of the other men before splitting up after they abandoned the stolen vehicle.
(Emphasis in Original)
20The Carrington facts, for all intents and purposes, are on all fours with the case at hand. It was an unreasonable verdict argument in that case but nonetheless Justice Simmons’ comments are fully applicable to the present situation. In the end, on the evidence here, it is difficult to accept that the men in the Honda were simply along for the ride and did not share a common intention to aid or abet each other in the offences.
21In conclusion, in my opinion the preliminary hearing judge erred in finding that there was no prima facie case of presence and no prima facie case of being a party to the offences.
DID THE PRELIMINARY HEARING JUDGE COMMIT JURISDICTIONAL ERROR?
22A legal error is not necessarily a jurisdictional error: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804 (S.C.C.) at paras. 19-21. In a criminal prosecution, only a jurisdictional error is conducive to extraordinary remedies review. The test is the same, whether it is the Crown requesting review of a discharge from the preliminary hearing, as here, or whether it is the accused challenging committal after the preliminary hearing. However, in logic, the application of the test differs depending on whether it is the Crown or the defence applying for review. Applying the test to a positive action (committal for trial) is different than applying it to a negative one (a discharge).
23If the defence is bringing the review, the most common situation argued is that there was an absence of evidence on an essential element of the offence. It is well-settled that this is an error of jurisdictional dimension: R. v. DesChamplain, 2004 SCC 76, [2004] 3 S.C.R. 601(S.C.C.) at para. 23; Russell at para. 21. When it is the Crown reviewing a discharge, the seminal statement also comes from DesChamplain:
23 … it 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 , supra, 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.
(Emphasis Added)
24For clarity, it is helpful to examine Chief Justice McLachlin’s reaction to the complaint that the different application of the test for jurisdictional error depending on whether it is a discharge or committal in issue works an unfairness to the prosecution. She wrote in Russell,
29 The discrepancy that troubles the Crown is not, in my view, disturbing. As I note above, the governing principle is the same whether an error is challenged by the Crown or by the accused. While it is true that the effect of this principle is that errors as to the essential elements of the crime will, as a general rule, be reviewable when challenged by the accused but not when challenged by the Crown, this disparity reflects the balance of harms: a wrongful discharge does not raise the possibility of a violation of s. 7 of the Canadian Charter of Rights and Freedoms; by contrast, I think it clear that committing an individual to stand trial on a charge for which there is no evidence on one of the essential elements would violate the principles of fundamental justice. I note, moreover, that in circumstances such as were at issue in Tremblay, supra, the Crown is free, subject to the requirements of s. 577 of the Criminal Code, to lay a new information or prefer an indictment. There is no analogous remedy available to the accused.
(Emphasis in Original)
25I cannot, therefore, review the discharges in this case on the simple basis of disagreement on the issue of sufficiency. Discharging where there is direct evidence on each essential element is jurisdictional in nature. In our case, however, the Crown’s case is purely circumstantial. Some judicial discretion is inevitable in cases of circumstantial evidence because a preliminary inquiry judge must perform a limited weighing to determine whether an inference can be drawn from a primary fact: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.) at para. 23.
26There are several types of jurisdictional errors identified in the jurisprudence when the Crown challenges a discharge, for example:
a) Failing to consider the “whole of the evidence” when discharging under Section 548(1)(b) of the Code was the jurisdictional error identified in DesChamplain,
b) In the companion case to DesChamplain, R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 (S.C.C.) the preliminary hearing judge erred in failing to appreciate that the complainant had testified that she had not consented to the sexual activity. The Court opined that at least one of three errors was evident, each of which was jurisdictional in nature: para. 25. I. The judge may have misunderstood the non-consent element of the offence. II. He may have preferred an inference favouring the defence over the one favouring the Crown. III. Or, lastly, the judge could have overlooked the evidence of non-consent and, therefore, failed to consider the whole of the evidence as in DesChamplain,
c) It is jurisdictional error for a preliminary hearing judge to act arbitrarily: DesChamplain at para. 23.
27The Crown attempts to bring the preliminary hearing judge’s decision into the territory of jurisdictional error with three submissions:
a. By finding no evidence of the identity of the principal;
b. By ignoring or rejecting inferences available to the Crown; and,
c. By failing to consider the cumulative effect of the circumstantial evidence as a whole.
28In relation to the finding that there was insufficient evidence of the Respondent being the principal in the carjacking--that is the man with the gun who accosted Ms. Nayef—I agree with the preliminary hearing judge in this respect. The description of the individual and the gun did not fit the Respondent or his .38 revolver. They fit another accused person—Pierce--much more closely. There was sufficient evidence to say that the Respondent was present at the scene but insufficient evidence to say that the Respondent was the person with the gun. As against the Respondent, this was solely a joint intention or party to the offence case.
29The second assertion, that there was a preference for inferences benefitting the defence over those benefitting the Crown, fares no better than the first. The preliminary hearing judge’s reasons excerpted above contain no indication that he deviated from his obligation in this manner. Furthermore, he said in his reasons (pp. 15-16),
The court is well aware it is not within the purview of the preliminary inquiry to choose between competing inferences that can reasonably be drawn. The question is after considering the totality of the evidence can a reasonable inference be drawn that Mr. B. was in the company of the people who committed the carjacking at midnight? Or is there an evidentiary gap in the totality of the evidence?
(Emphasis Added)
30A perusal of his reasons supports the conclusion that the preliminary hearing judge found that inferences advanced by the Crown to show presence and participation were simply not available. He fully understood that he had to accept the Crown’s inferences over those advocated by the defence. There was no weighing of competing inferences as was the jurisdictional error committed in R. v. C. (A.), 1999 2372 (ON CA), [1999] O.J. No. 4041, 140 C.C.C. (3d) 164 (Ont. C.A.) at para. 7. In holding there was insufficient evidence, the preliminary hearing justice was properly performing his mandate.
31I also disagree that the preliminary hearing judge did not consider the whole of the evidence. In DesChamplain, the preliminary hearing judge found that there was no evidence that a knife was made of metal. But there was a considerable body of circumstantial evidence on the point. The judge did not refer to any of this circumstantial evidence in her reasons and this failure demonstrated that she did not consider “the whole of the evidence.” There was no analogous omission in this instance. All evidence was considered.
32Nor did the judge misunderstand the import of a piece of direct evidence the way the preliminary hearing judge in R. v. Foster, [2008] O.J. No. 827 (Ont. S.C.J.) at para. 33. In that case, the preliminary hearing judge appeared to misunderstand the significance of the mask dropped at the scene which had the accused’s DNA on it.
33The distinction between regular legal error and jurisdictional error is not a bright line. It is open to interpretation. The 4:3 split in DesChamplains demonstrates the difficulty of the distinction. It could be argued that in this case, the failure to draw the inference of presence was because the judge did not consider the full import of the cell phone evidence or the inferences available from the Respondent’s presence in the backseat of the vehicle soon after it was stolen. However, it is clear from his reasons that the judge did consider those matters but, after weighing the evidence as required by Arcuri, did not believe a reasonable inference was available. At no time did the judge fail to consider and understand the primary and direct evidence adduced by the Crown.
34I conclude that the preliminary hearing judge’s decision revolved around his opinion that the inferences arising from the primary evidence were simply insufficient towards demonstrating guilt to the prima facie threshold. This was a judgment well within his jurisdiction to make: R. v. Turner, 2012 ONCA 570, [2012] O.J. No. 4088 (Ont. C.A.) at para. 30.
35No jurisdictional error being committed, the Crown’s application must be dismissed.
D.E HARRIS J.
Released: December 10, 2020
COURT FILE NO.: YC-20-0366
DATE: 2020 12 10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
J.B. (A Young Person)
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: December 10, 2020