BACKGROUND

[1] On May 1, 2018, Toronto Police executed a search warrant at 44 Willowridge Road, Apartment 1105. The police entered the apartment at 11:15 pm. They searched the apartment. They found a handgun in the pocket of a woman’s coat. The coat was in a hallway closet.

[2] The lessee of the apartment was Sumaya Jama. She and her two children were in the apartment when the police executed the warrant. Abdirahaman Omar was also in the apartment when the police executed the warrant. The police arrested Mr. Omar and charged him with several offences relating to possession of the gun. Mr. Omar is the father of Ms. Jama’s two children but he did not permanently reside in the apartment at that time.

[3] The police also charged Ms. Jama with offences relating to possession of the gun. The Crown withdrew those charges, however and called Ms. Jama as a witness against Mr. Omar at the preliminary inquiry. Ms. Jama testified that the gun did not belong to her.

[4] The preliminary inquiry judge, Justice Budzinski, dismissed the charges against Mr. Omar.

[5] The Crown seeks an order of certiorari, quashing the preliminary inquiry judge’s dismissal. The Crown also seeks an order of mandamus, ordering Mr. Omar to stand trial.

[6] In my view, Justice Budinski made an error of law when he discharged Mr. Omar. Notwithstanding that error, it was one that was within his jurisdiction. I also disagree that he exceeded his jurisdiction with regard to the sufficiency of the evidence. There is no basis for this court to interfere. For the reasons that follow, the Application is dismissed.

ANALYSIS

[7] Crown Counsel, Mr. Zambonini, made one very simple argument: there were two adults in the apartment. One of them denied that the firearm was hers. It was an available – and reasonable – inference that Mr. Omar, an occasional overnight visitor, stored the weapon in Ms. Jama’s coat. By failing to choose an available inference that was favourable to the prosecution, the Crown argues that the preliminary inquiry judge erred. If that is so, then the question is whether that was an error that caused him to exceed his jurisdiction. It is a jurisdictional error, for example, to commit an accused for trial where there is no evidence on an element of an offence: R. v. Russell, 2001 SCC 53 at paras. 19-20. In this case, Crown counsel argues, the preliminary inquiry judge failed to consider “the whole of the evidence” and therefore committed jurisdictional error.

[8] Notwithstanding Mr. Zambonini’s argument, presented with his usual efficiency, I respectfully disagree.

[9] It is well-settled that a preliminary inquiry judge is required to commit an accused person for trial where there is some evidence on each of the elements of the offence. Here, the Crown’s case is circumstantial. Where the Crown’s case relies on circumstantial evidence, the preliminary inquiry judge must conduct a limited weighing of the evidence. That limited weighing is for the purpose of determining whether the evidence is capable of supporting the inferences that the Crown seeks to have the jury draw. The preliminary inquiry judge only asks whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54 at paras. 22-23. Where the evidence is purely circumstantial, whether there is a rational explanation other than guilt is for the jury, not for the preliminary inquiry judge: R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679 at para. 4. The preliminary inquiry judge does not choose among competing inferences – that is also for the jury: R. v. Sazant, 2004 SCC 27 at para. 23.

[10] A prerogative remedy such as certiorari or mandamus is not available where a preliminary inquiry judge makes a “mere” error of law or comes to a conclusion different from the conclusion that I might have come to: R. v. Russell at para. 19; R. v. Awashish, 2018 SCC 45 at para. 17. In this case, there is no doubt that the preliminary inquiry judge made an error of law. He stated that the Crown did not establish that Mr. Omar had “exclusive possession” of the gun. Of course, the Crown need not prove “exclusive possession” at either the preliminary inquiry or the trial. The Crown must show, at a preliminary inquiry, some evidence of knowledge and control. “Possession” could be joint or constructive; it certainly need not be exclusive. The Crown does not, however, argue that this error constituted an error of jurisdiction. I agree.

[11] In this case, the Crown argues that the preliminary inquiry judge exceeded his jurisdiction by drawing an inference favourable to the accused over an inference favourable to the Crown. In doing so, the Crown argues that the preliminary inquiry judge failed to consider “the whole of the evidence” as he was required to do under s. 548(1)(b) of the Criminal Code: R. v. Deschamplain, 2004 SCC 76 at para. 18. The task of a reviewing court is different where a preliminary inquiry judge discharges an accused, as opposed to commits an accused for trial. It will not be a jurisdictional error if, for example, a preliminary inquiry judge commits the accused for trial on a lesser charge because he or she takes a different view of the evidence: R. v. Deschamplains at para. 37. This court, the Crown argues, ought to issue mandamus to compel the Ontario Court of Justice to commit Mr. Omar for trial on the various gun possession charges (a complicating factor is that the preliminary inquiry judge has now retired and cannot, therefore, reconsider his decision).

[12] Mr. Scaramuzza, for Mr. Omar, argues that there was simply no evidence tying Mr. Omar to the gun. Even if the preliminary inquiry judge erred in his conclusion as to the sufficiency of the evidence that is not a jurisdictional error: Russell, at para. 25-26. This was a circumstantial case – the inferential gap, he argues, is simply too wide. Taking a different view of the evidence than the preliminary inquiry judge does not amount to jurisdictional error. In essence, Mr. Scaramuzza argues that in order to commit Mr. Omar for trial the preliminary inquiry judge would have had to engage in speculation: R. v. Tse, [2005] O.J. No. 2772, 2005 CarswellOnt 2842 (Sup.Ct.) at para. 14. To do so would be to inadmissibly infer knowledge from mere occupancy without more: R. v. Escoffery and Grey (1996), 1996 CanLII 35 (ON CA), 28 O.r. (3d) 417 (C.A.) at paras. 21-22.

[13] In particular, Mr. Scaramuzza relies on the following passage from R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.) at para. 52:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.

[14] He says that there are no established facts from which a trier of fact could draw an inference of knowledge and control.

[15] Mr. Scaramuzza relies on R. v. Turner, 2012 ONCA 570. In that case, the police executed a search warrant at 5:00 am in a two-bedroom apartment. The police found Turner in the doorway of one of the bedrooms. The other two occupants of the apartment were Ms. Gray and her young daughter. Ms. Gray provided a statutory declaration indicating that the gun did not belong to her. Turner’s driver’s licence was found on the bedroom floor. A loaded gun was found under some folded clothing of the closet. No other evidence connected Turner to the gun. He was charged with various gun possession offences. The preliminary inquiry judge discharged Turner. The reviewing judge in this court found that the preliminary inquiry judge failed to consider “the whole of the evidence” and ordered the matter remitted back to the preliminary inquiry judge. He also relies on the judgment of Wong J. in the Ontario Court of Justice in R. v. Graham, 2012 ONCJ 638 to similar effect.

[16] It is difficult to see what evidence actually connected Mr. Omar to the handgun. At the end of the day, much like Turner, he simply happened to be in the same apartment as the gun. No other evidence tied him to it. I find the following passage from Turner, at paras. 29-30, quoting from Deschamplain, to be on point:

... 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.

While I am satisfied that the preliminary inquiry judge made no error in her consideration of the whole of the evidence and whether it was sufficient to satisfy the Sheppard test, any error that she may have made was not jurisdictional. Conclusions as to the inferences to be drawn from the evidence are within the jurisdiction of the preliminary inquiry judge and are not reviewable.

DISPOSITION

[17] The application is dismissed.

R.F. Goldstein J.

Released: January 7, 2020

COURT FILE NO.: CR-19-00000067-00MO

DATE: 20200107

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ABDIRAHMAN OMAR

REASONS FOR JUDGMENT ON CERTIORARI APPLICATION

R.F. Goldstein J.

R. v. Omar, 2020 ONSC 85

Case Summary

BACKGROUND

ANALYSIS

DISPOSITION

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 1