Introduction

[1] On June 18, 2018, a large Toronto Police investigation called “Project Patton” concluded with over 100 arrests. This investigation was centered on a criminal organization known as the Five Point Generalz (“5PG”). It was focused on gun and drug trafficking and explored connections to what police believed to be shootings and retaliation by gang members and associates.

[2] Eight of the people arrested in Project Patton appeared before the preliminary inquiry judge at the Ontario Court of Justice starting June 3, 2019. They were the Respondents, Kemarr Badroe, Clint Charles and Dalton Young, as well as Carl Brammall, O’Shane Chisholm, Alex Felix, Shain Henry and Joseph Dawkins.

[3] The preliminary inquiry was conducted by way of s. 540(7) of the Criminal Code, R.S.C., 1985, c. C-46. The Crown presented evidence that was otherwise contained in its s. 540(7) material, consisting of 17 volumes in 6 banker’s boxes. As well, the Crown called a drug and a firearm/coded language expert. This evidence established that the callers in the intercepted conversations were using drug or firearm terms.

[4] After nine days of evidence and submissions from counsel, on July 19, 2019, the preliminary inquiry judge made the following orders that are relevant to this application:

(1) Kemarr Badroe, Clint Charles, Dalton Young, along with Shain Henry, were discharged on s. 467.11 offences. Carl Brammall, O’Shane Chisholm, Joseph Dawkins and Alex Felix were committed for trial on s. 467.11 offences.

(2) Kemarr Badroe, Clint Charles and Shain Henry were discharged on s. 467.12 offences. Carl Brammall, O’Shane Chisholm, Joseph Dawkins, Alex Felix and Dalton Young were committed for trial on s. 467.12 offences.

(3) Clint Charles was discharged on the s. 467.13 offence. Specifically, Mr. Charles was discharged on the charge of instructing Jamal Charles and David Dauda to traffic cocaine. Alex Felix was committed for trial on the s. 467.13 charge.

(4) Kemarr Badroe was discharged on the s. 465(1)(c) offence of conspiracy to commit robbery.

[5] The Crown seeks an order for a writ of certiorari with mandamus in aid, quashing the orders made discharging the Respondents Kemarr Badroe, Clint Charles and Dalton Young on the charge of participating in the activities of a criminal organization (s. 467.11), discharging the Respondents Kemarr Badroe and Clint Charles on the charge of committing an offence in association with a criminal organization (s. 467.12), discharging the Respondent Clint Charles on the offence of instructing an offence in association with a criminal organization (s. 467.13) and discharging the Respondent Kemarr Badroe on the offence of conspiracy to commit a robbery (s. 465(1)(c)), and an order remitting the matter to the preliminary inquiry judge with a direction to commit the Respondents to stand trial on the charges.

Background

[6] The Crown’s theory is that the 5PG criminal organization was engaged mainly in the illegal businesses of drug trafficking, firearms possession and trafficking, and robberies. The Crown submits that the organization considered the area surrounding Jane Street and Weston Road in north-west Toronto as its territory and trafficked and congregated there with impunity. The organization had a drug supply and distribution chain as well as an informal command system with more senior constituents or members instructing junior accused. The 5PG had been the subject of an investigation in 2010 known as “Project Corral”, that led to pleas to and convictions of trafficking and criminal organization offences. Several people arrested in Project Corral were arrested again in Project Patton, including the Respondents Clint Charles and Dalton Young.

[7] At the preliminary inquiry, the evidence upon which the Crown relied included, among other things, evidence of previous homicides that were later memorialized in social media or by tattoos of other organization members; tattoos of various alleged members related to the 5PG; clothing lines representing the criminal organization and owned by certain 5PG members; postings on Instagram accounts of 5PG associates or members; YouTube videos showing 5PG members and associates in various poses and activities; videos of the Westwood Burger Bar and 20 Doner Bar & Grill, both restaurants in the Jane and Weston Road area where alleged members gathered; physical surveillance; intercepted communications, organized into target-to-target intercept tables; events resulting in charges; takedown day charges, as a result of search warrants; events among the eight accused, relevant to the existence of a criminal organization; and voice identification evidence.

Criminal Organization Offences

[8] Section 467.1(1) of the Code provides that a criminal organization is a group of three or more persons which has as one of its main purposes or main activities, the facilitation or commission of serious offences that would likely result in the direct or indirect receipt of a material benefit by the group or any of the persons constituting the group. The group cannot be one that was randomly formed for the immediate commission of a single offence.

[9] The criminal organization provisions of the Code on which the dismissals are being challenged are as follows:

Participation in activities of criminal organization

467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

Commission of offence for criminal organization

467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Instructing commission of offence for criminal organization

467.13 (1) Every person who is one of the persons who constitute a criminal organization and who knowingly instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, the criminal organization is guilty of an indictable offence and liable to imprisonment for life.

[10] Mr. Badroe’s dismissal on the conspiracy to commit robbery charge is also being challenged. The relevant Code provision provides as follows:

Conspiracy

465 (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable;

Scope of Review of Certiorari

[11] In preliminary inquiries, the applicant must establish jurisdictional error for certiorari to be granted, such as where a preliminary inquiry judge commits an accused to stand trial in the absence of any evidence on an essential element of the offence. The task of the reviewing court is extremely narrow. A reviewing judge does not consider whether they would have reached a different conclusion as to sufficiency: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19; R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 37.

[12] The scope of review of a discharge is identical in the sense that review is only permissible where there is jurisdictional error. However, in practical terms it is not a perfect mirror-image of review of committal. Wrongful discharge in the face of evidence that would permit a reasonable finding of guilt will only be quashed if it was tainted by jurisdictional error. If the improper discharge was not tainted by jurisdictional error, the accused maintains the benefit of this. If the Crown feels strongly about the injustice, it can prefer an indictment under s. 577 of the Criminal Code: R. v. Russell, at paras. 28-29.

Crown Position

[13] The Crown submits that the preliminary inquiry judge committed jurisdictional error in that,

(1) he failed to consider the evidence as a whole as required by s. 548(1)(b) of the Code;

(2) he failed to test the evidence against the essential elements of the offence; and

(3) he weighed competing inferences available on the evidence, thereby accepting inferences favourable to the Respondents over inferences favourable to the Crown.

Evidence

Kemarr Badroe

[14] The Crown’s evidence in support of committal of Mr. Badroe on the criminal organization charges included images from Mr. Badroe’s Instagram account. These included an image of 5PG constituent Leonardo Baychu and Mr. Badroe making a W hand sign, which apparently means West Side and was commonly seen on other 5PG constituents’ social media posts. As well, in a posted video, Mr. Badroe said “Fuck da boydem [police], finesse artist from Jane and Weston”, standing next to a police cruiser. An image of Mr. Badroe was also seen in the Instagram account of another 5PG constituent, Akiel Eubank, together with Mr. Eubank and 5PG constituent Michael Lewis.

[15] The Crown also relied on surveillance of Mr. Badroe. He was at the Westwood Burger Bar on September 19, 2017 with another alleged 5PG associate shortly before two other constituents, Jerome Robinson and Alex Felix, conducted a hand-to-hand drug transaction. On November 12, 2017 in the early morning, Mr. Badroe was at the restaurant with associates. Mr. Badroe was again seen at the Westwood Burger Bar with associates on November 18, 2017.

[16] Mr. Badroe, who lived very close to the 20 Doner Bar & Grill, was also recorded there on various occasions. In March 2018, Mr. Badroe was seen to be meeting with 5PG leader Joseph Dawkins and Mr. Young. In April 2018, Mr. Badroe was seen with Mr. Young and other 5PG constituents or associates, namely Carl Brammall, David Dauda, Shane Evans, Alex Felix, Rakeem Henry, Michael Lewis and Jerome Robinson. In May 2018, Mr. Badroe was seen at 20 Doner Bar & Grill, again with Mr. Young and other constituents.

[17] There were also wiretap intercepts filed at the preliminary inquiry that captured Mr. Badroe communicating with 5PG constituents and associates.

[18] The Crown evidence showed that Mr. Badroe trafficked cocaine to his own customers in the 5PG territory, and that he trafficked cocaine with other men who in turn trafficked with other constituents. Mr. Badroe used a neighbourhood drug addict, Debbie Dearing, to rent cars for him, in exchange for supplying her with cocaine and heroin. This was a practice used by 5PG constituents.

[19] The Crown also relied on evidence surrounding the shooting of 5PG constituent Alex Felix on April 13, 2018. Mr. Felix was later found to have 22 grams of cocaine and $595 on his person at the time. Intercepts revealed that Mr. Badroe and Mr. Young as well as 5PG constituents Carl Brammall and Jerome Robinson were present at the scene. After the shooting, Mr. Badroe drove Mr. Felix’s car to another club; the car contained Mr. Felix’s gun, identification, and more drugs and money. At the second club, another fight broke out and Mr. Badroe was stabbed in the chest. In total, 14 5PG constituents or associates were intercepted talking about the shooting in the days afterward. Mr. Badroe was the first person Mr. Felix called after he was shot; Mr. Badroe told Mr. Felix he would visit him in the hospital.

[20] The Crown’s evidence with respect to the charge against Mr. Badroe of conspiracy to commit a robbery stems from intercepted conversations between Mr. Badroe and Duane Douglas. Mr. Douglas is not alleged to be a 5PG constituent.

[21] Mr. Badroe conceded committal on a number of charges, including trafficking cocaine, possession of cocaine for the purpose of trafficking, trafficking heroin, one count of conspiracy to traffic cocaine, and possession of the proceeds of crime.

Finding for Kemarr Badroe

[22] The findings with respect to each of the Respondents are reviewed in some detail later in these reasons. In brief, the preliminary inquiry judge found that Mr. Badroe was a stand-alone drug trafficker, dealing with random customers.

Clint Charles

[23] The Crown’s evidence in support of Mr. Charles’ involvement in the criminal organization offences (ss. 467.11, 467.12, 467.13) included a tattoo on Mr. Charles that says, “RIP Curlz, 09/26/86 – 10/30/12”, an apparent reference to Leonard Fullerton, a 5PG homicide victim who was also memorialized by other 5PG associates.

[24] The Crown also relied on various posts in Mr. Charles’ Instagram account that included posts by, and images of, 5PG members. These included, among other things, images of constituents or associates making the W West Side hand sign. As well, Mr. Charles posted images to his Instagram account of people incarcerated as a result of Project Corral. Mr. Charles wrote the following comments about these photos: “Free 5PG, TeamWeston, We5tonRd, FreeTheGenerals” and “5alute”.

[25] Mr. Charles also made comments on Instagram accounts of three other 5PG associates, where again there are references to freeing members who are in custody. As well, he appeared along with other constituents or associates in a YouTube video promoting the 5PG, made by another constituent, in which he was making a W hand sign.

[26] The Crown also provided evidence of intercepts involving Mr. Charles, noting that Clint Charles was intercepted regularly communicating with 12 other 5PG constituents for a total of 2,220 contacts – the largest number of all the accused. It also provided evidence that Mr. Charles trafficked cocaine and marijuana frequently with other 5PG constituents or associates.

[27] Mr. Charles conceded committal on trafficking cocaine, mischief, and three counts of conspiracy to traffic in cocaine.

Finding for Clint Charles

[28] In brief, the preliminary inquiry judge accepted the defence concession that Mr. Charles could be committed to trial for conspiring to traffic drugs with his cousin Jamal Charles (incorrectly referred to as his brother), David Dauda and Tim Jack in separate transactions on separate days. The preliminary inquiry judge also accepted the defence concession that Mr. Charles could be committed to trial for trafficking cocaine and committing mischief.

Dalton Young

[29] In support of the criminal organization charges, the Crown noted that Mr. Young has tattoos reading “5PG” and “GENERAL”. He also has a tattoo reading “RIP GP 1988 – 2006”, apparently referring to 5PG homicide victim Romaine Lawrence.

[30] The Crown again relied on various Instagram postings. These postings include pictures of Mr. Young on other 5PG constituents’ Instagram accounts. Among other things, there are various images of Mr. Young, posing with other 5PG constituents, making the W hand sign and wearing clothing associated with the 5PG organization.

[31] The Crown further relied on video evidence that placed Mr. Young at the usual 5PG gathering spots, the Westwood Burger Bar and the 20 Doner Bar & Grill, at various times, together with other 5PG constituents or associates.

[32] Mr. Young was also intercepted speaking with 11 other organization constituents, numerous times. The intercepted calls suggest that Mr. Young was present when Alex Felix was shot, and that Mr. Young threw a gun away.

[33] The Crown also pointed to a call between Mr. Young and a woman named DeeDee who lived in the 5PG area. Deedee phoned Mr. Young and asked him to help with an issue concerning the 5PG. She said everyone in Weston Road knew about the 5PG. It was the Crown’s submission that she assumed Mr. Young was a 5PG constituent, and that Mr. Young’s answer to her in their conversation assumed as much.

[34] The Crown position was that Mr. Young lived in the 5PG area, and regularly trafficked cocaine and heroin to those in the area, with other 5PG constituents.

[35] Mr. Young conceded committal on trafficking cocaine and possession of the proceeds of crime.

Reasons for Dalton Young

[36] In brief, the preliminary inquiry judge found that Mr. Young was a very busy street level dealer of cocaine and heroin. He found that there was enough evidence to commit Mr. Young on the s. 467.12 offence of trafficking in association with a criminal organization, given the quantity and nature of his contacts with Joseph Dawkins, a leader of the loosely structured criminal organization.

Was There a Jurisdictional Error?

Failure to Consider the Evidence as a Whole

[37] The Crown submits that the preliminary inquiry judge did not review the whole of the evidence. In particular, the Crown submits that the preliminary inquiry judge did not review the evidence about the 5PG Project Corral investigation in 2010. The Crown submits that this failure led the preliminary inquiry judge to reject the inference that the 5PG had many members, including the Respondents, and was entrenched in the drug trade in the Jane and Weston Road area.

[38] In support of its submission that the preliminary inquiry judge did not review the whole of the evidence, the Crown relies on the transcript from the bail hearing of Carl Brammall on July 25, 2019, six days after the preliminary inquiry judge rendered his decision on committal. The following exchange occurred at that bail hearing between the preliminary inquiry judge and Mr. Morris, counsel for Mr. Brammall:

Mr. Morris: You’ve heard of Project Corral.

THE COURT: No, I don’t -- no.

MR. MORRIS: You did but it’s in the 540 materials but in any event.

THE COURT: In 2010 I wasn’t in --

MR. MORRIS: I know you weren’t.

THE COURT: -- the City of Toronto.

MR. MORRIS: I know you weren’t, but you did advise that you had read the section 540 materials that the Crown presented.

THE COURT: Sure.

MR. MORRIS: Which indicate that a number of individuals including Mr. Brammall were prosecuted in 2010 in relation ---

THE COURT: I didn’t read that. Why would I be reading that?

MR. MORRIS: I don’t know. Because it was in the 540 materials.

THE COURT: I don’t know, Mr. Morris. When I read materials, I try to read what’s relevant and material. I’m sure you do the same thing. I’m sure when you’re presented with an ITO, you don’t go through the boilerplate, and you don’t look at all the stuff that gets put in there.

MR. MORRIS: I do actually. I do.

THE COURT: Well, I don’t. I tend to go to where I think the -- the meat or the heart of the matter rests, and I tend to stay there for a while. No, I’m not aware of something from 2010.

MR. MORRIS: Okay.

THE COURT: How would that have possibly factored into what I was doing in any principled way? I mean it’s almost like I’m being chastised for not reading something that I’m glad I didn’t read. Carry on.

[39] The Crown submits that since the Compendium filed as part of the s. 540(7) material referred to Project Corral 18 times, the preliminary inquiry judge’s lack of knowledge about Project Corral at the later bail hearing shows that the preliminary inquiry judge could not have read the Compendium. The Crown submits that this was a key piece of evidence about the existence, purpose and activities of the organization as well as the constituency or membership of the accused.

[40] However, I note the following:

(1) There was no Project Corral section in the Compendium filed by the Crown at the preliminary inquiry. Rather, there was one explanatory paragraph on p. 2 of the 440-page Compendium that explained that the subject criminal organization had its genesis in the street gang called the Five Point Generalz and that 5PG had been the target of a 2010 police investigation called Project Corral. This paragraph noted that several of the current accused were arrested in 2010 and found guilty of various drug and criminal organization offences. It went on to say that the organization operates in the area from Weston Road south of Highway 401 to St. Clair Avenue West in Toronto. Beyond this paragraph, the bulk of the references to Project Corral in the Compendium are incidental comments that indicate that someone was investigated as part of Project Corral or convicted of a Project Corral offence.

(2) The Crown did not provide disclosure to the accused or defence of any aspect of the Project Corral investigation as part of the disclosure materials for Project Patton. As such, Project Corral could not have been an evidentiary component to the preliminary inquiry. Section 540(7) applies and is available for use by the Crown only if that evidence is available to be elicited at the preliminary inquiry. Given that the Crown did not disclose substantive information related to Project Corral as part of the Project Patton disclosure, the Project Corral references had no evidentiary value in the preliminary inquiry.

(3) The Crown made clear in the Compendium and on the record in court that it was not seeking to prove the existence of a street gang named the 5PG. The Crown indicated that it was seeking to prove the existence of a generic criminal organization as defined in the Criminal Code. In particular, the Crown noted, among other things, in its Compendium, “The Crown does not intend to prove the existence of a Toronto criminal street gang called the ‘5PG’. The Crown does intend to prove the existence of a criminal organization as defined by the Criminal Code – whatever its constituents call it.” [Emphasis original.]

(4) The Crown reiterated this approach in its oral submissions made on June 4, 2019. At pp. 9 and 10 of the transcript of June 4, 2019, the Crown stated:

So over on page 11, we also list the beginning of the criminal organization sections as being the drivers of the theory of the Crown, and that of course is set out clearly for you, thus, and I’d like to emphasize that it is not the Crown’s interest in this case to prove the existence of a criminal street gang. That’s why there’s no gang expert. The Crown’s only interested in looking at the criminal organization as it is defined in the Criminal Code and the terms that are used such as material benefit, financial benefit and commission of serious offences and main purpose or main activity, it’s all covered and indeed forms the skeleton for the next 140 or so pages.

(5) In submissions on June 25, 2019, counsel for Mr. Young was referencing the apparent longstanding friendship between Mr. Young and Mr. Dawkins. He stated, at p. 157, “that’s my submission to this court is that the calls involving Mr. Dawkins and Mr. Young, who have been friends for well over a decade, they were charged together in Project Corral”. While the preliminary inquiry judge recognized that Mr. Young and Mr. Dawkins grew up together, in response to counsel’s submission referencing Project Corral, the preliminary inquiry judge stated, “I can’t use that, eh?” The Crown clearly heard this exchange, made no comment and made no reference to Project Corral in its submissions on committal.

[41] Project Corral was about the 5PG. In my view, given the approach taken by the Crown not to prove the existence of a particular criminal street gang called the 5PG, the preliminary inquiry judge understood that he was to largely ignore the evidence relating to Project Corral. This is evident through his exchange with counsel for Mr. Young during submissions. When this exchange is considered together with the non-disclosure of any Project Corral materials, I am not prepared to find that the preliminary inquiry judge lost jurisdiction on the basis of comments he made about Project Corral at a bail hearing held nearly one month after the preliminary inquiry concluded, and some six days after his reasons for decision were released. These comments do not establish that the preliminary inquiry judge did not read the Compendium.

[42] The Crown also submits that the preliminary inquiry judge disregarded evidence of clothing lines, tattoos, Instagram accounts and YouTube videos; evidence that it submits is replete with indicators of the existence of the 5PG, its purposes and activity, and the constituency of many of the accused people. The Crown position is that the preliminary inquiry judge made an ab initio determination not to consider this evidence.

[43] With respect to evidence of this nature, the preliminary inquiry judge did not make an ab initio decision not to consider it. Rather, he stated as follows, at pp. 26-27 of his reasons:

Carl Brammall figures in some of the evidence about tattoos and clothing and a person who appears in what videos were introduced by the prosecution, and that kind of evidence clearly figured in the Crown’s submissions about the criminal organization charges. In the course of the trial and at points in these reasons, I’ve pointed out that for my purposes, I didn’t find this evidence to be of any significance. At best, it was consistent with the evidence connecting some of these individuals as men who share common interests and hang out together. But on its own, this evidence has no value, and even in connection with the other evidence, it would be dangerous, highly dangerous to appear to give it any weight in considering whether there is sufficient evidence to support committals on the criminal organization charges. In that regard, the evidence about tattoos, clothing, videos and the like shouldn’t be confused with the evidence produced from the active surveillance of the subjects in the particular areas. As I’ve already indicated, inferences can be drawn from the association of particular individuals in particular spots who appear to be meeting as a group for criminal purposes that support other evidence making out those purposes. What the subjects might be wearing or how they might be tattooed is in my view as irrelevant as the fact that they might also appear at other times in each other’s performance videos. At best, this evidence is consistent with the picture by other more relevant and incriminating evidence that Carl Brammall was seen as a valued member of the group.

[44] In its submissions with respect to Mr. Charles at the preliminary inquiry, the Crown acknowledged that:

This is Clint Charles’ Instagram posting. So what are we supposed to do with this. We get, we get Shane Evans, Joseph Dawkins, and this is on Mr. Clint Charles’ Instagram and he’s saying ‘free 5PG team Weston. Weston Road. Free the Generalz. 5 salut’. And then ‘free the 5’. And Mr. Dawkins doing a W hand sign. And a lot of these guys do W hand signs or 5 hand signs. All I’m – I’m not saying that this is determinative of the issue.

[45] In my view, the submission about the evidentiary value of the Instagram evidence as it relates to Mr. Charles applies to all three Respondents.

[46] As well, the Crown’s submission that the preliminary inquiry judge made an ab initio determination to disregard social media evidence is not supported by the transcript of the Crown’s closing submissions on committal.

[47] At pp. 44-45 of the transcript of June 26, 2019, the following exchange took place between the Crown and the preliminary inquiry judge:

THE COURT: And I don’t know how a bunch of guys on a video saying hey, we’re the whatever, and we rule the roost and whatever, and we’ve got this and we’ve got that means anything other than it’s a bunch of guys on a video doing that. It may be -- if that --

MR. KRUEGER: By itself I agree. If those guys happen to be actors or hired for the day or something like that, I agree. They are all drug traffickers. They’re all on the wire. It’s real life. That’s what it means.

THE COURT: So what does this add to the evidence of drug trafficking. By ‘this’ I mean the videos.

MR. KRUEGER: Uhmm, well, as I have got on the screen right now, for example, control of territory, DVD’s were filmed in the open. They use terms consistent with criminal organization. The people use terms consistent with drug trafficking. They have resources, enough organization to get together to do this promotional video, which is what the Crown say they are.

THE COURT: If you just had this, the social media stuff --

MR. KRUEGER: If I just had it, I wouldn’t be here.

THE COURT: Okay.

MR. KRUEGER: I’d be out the door.

THE COURT: That’s where I started.

MR. KRUEGER: Right. But Your Honour, if you’re going to totally disregard it --

THE COURT: Not totally disregarding it.

MR. KRUEGER: All right. Well all I --

THE COURT: I mean it...and I don’t want to be misunderstood to say it’s irrelevant. It’s contextual, it’s important. It puts people in association.

MR. KRUEGER: Definitely.

THE COURT: It’s a definitely foundational requirement but it’s one that, in my view, was so obvious that it doesn’t need be belaboured. No one’s disputing that these guys know each other. They hang together. On and off.

[48] While the preliminary inquiry judge did not specifically refer to the YouTube videos in his reasons, it cannot be said that he did not consider them. In this regard, I note that the preliminary inquiry judge did reference performance videos. In any case, a judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues: R. v. Toy, 2009 ONCA 176, at para. 22; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20. See also R. v. Deschamplain, at para. 49. Nor is a preliminary inquiry judge required to render extensive reasons, though they must demonstrate that they met the statutory and mandatory duty to consider the whole of the evidence: R. v. Deschamplain, at para. 34.

[49] It is not the case that the preliminary inquiry judge failed to consider the evidence of clothing lines, tattoos, Instagram accounts and YouTube videos. I am satisfied that he in fact considered this evidence, determined its relevance for committal purposes, and decided that it could not reasonably support the inferences that the Crown proposed. This is not a jurisdictional error.

[50] The Crown further submits that the preliminary inquiry judge did not refer to the tables of target-to-target intercepts which provided an inference of frequent association of a network of drug dealers.

[51] The preliminary inquiry judge did refer to the numerous calls among the various parties. With respect to Mr. Badroe, the preliminary inquiry judge commented on, among other things, the frequency of his calls with Michael Lewis. With respect to Mr. Charles, the preliminary inquiry judge addressed the contacts between Mr. Charles and his cousin Jamal, between Mr. Charles and Joseph Dawkins, between Mr. Charles and Mr. Young, and between Mr. Charles and Shain Henry. With respect to Mr. Young, the preliminary inquiry judge noted the contacts with Mr. Charles, and in particular, with Mr. Dawkins.

[52] The preliminary inquiry judge noted, among other things, that David Dauda, Tim Jack, Dalton Young, Shain Henry and Jamal Charles were all caught on wire intercepts. He addressed the intercepts that involved Mr. Young and concluded, at p. 34, “almost all of the relevant intercepts record conversations between Mr. Young and a buyer which substantiates his culpability as a prolific street dealer while doing nothing to advance the case that there is sufficient evidence that he’s a member of the criminal organization as alleged”.

[53] However, in contrast, the preliminary inquiry judge determined that the many calls between Mr. Young and Joseph Dawkins took on a more sinister light. He noted, at p. 35, that this is particularly so when the volume and pattern of calls and the elliptical language used by the men in those calls is coupled with the bits and pieces gleaned from surveillance which indicates a pattern of meets between the two men that is very suggestive of a re-supply.

[54] Nonetheless, it is the Crown’s position that in reviewing the intercepts, the preliminary inquiry judge omitted key evidence. For example, with respect to Mr. Badroe, the Crown’s position is that the preliminary inquiry judge only mentioned Mr. Eubank and Mr. Lewis, leaving out other constituents, and that he did not refer to Mr. Badroe’s use of the addict Debbie Dearing to rent cars — something the preliminary inquiry judge thought was significant of organization-related activity when he was considering the evidence as it related to O’Shane Chisholm.

[55] With respect to Mr. Charles, the Crown submits that the preliminary inquiry judge made no mention of his dealings with Carl Brammall or Michael Lewis. While the preliminary inquiry judge did refer to Tim Jack, the Crown submits that he made no reference to the fact that Alex Felix instructed Tim Jack to traffic cocaine and therefore was linked directly to Mr. Felix, whom he found to be one of the key players of the organization. The Crown also submits that the preliminary inquiry judge failed to note that Mr. Charles and Tim Jack planned to visit the hospital to see Alex Felix after he was shot.

[56] With respect to Mr. Young, the Crown submits, among other things, that the preliminary inquiry judge made no reference to a call from a woman named DeeDee, in which the Crown submits that Mr. Young represented himself as one of the 5PG. The details of the call to Mr. Young from DeeDee, found at p. 128, of the Compendium are set out below:

On March 29, 2018, at 2:45 p.m., Dalton YOUNG received an incoming call from an unknown female using phone number 416-418-7460. YOUNG referred to the female as ‘Deedee.’ A friend of hers was having domestic problems with a man named Shorty or Jamal from the Weston Road and Eglinton area. YOUNG said he knew of him but he was not one of his dogs. Deedee said that everyone in Weston Road knew of the 5PG. She believed YOUNG would have some influence over Shorty. Deedee contrasted the 5PG with Driftwood people, which she assumed were rivals. Deedee referred to YOUNG as D-BLOCK. Note that Deedee assumed YOUNG was a 5PG constituent. [Emphasis original.]

[57] There is no evidence from which to conclude that Mr. Young represented himself as one of the 5PG. The failure of the preliminary inquiry judge to refer to this evidence cannot be considered an error.

[58] The Crown position is that the preliminary inquiry judge’s failure to specifically refer to the target-to-target tables demonstrates that his analysis was not informed by an appreciation of how the various speakers were linked. However, the preliminary inquiry judge clearly referenced and relied on numerous contacts among the various speakers in making his determinations.

[59] I am satisfied that the preliminary inquiry judge was aware of the volume of calls, their content, to whom they were made and the connection among the various contacts. His failure to refer specifically to the digest of the calls summarized on the target-to-target tables does not amount to a loss of jurisdiction.

[60] The Crown further submits that the preliminary inquiry judge failed to review all the intercepts relating to the charge against Mr. Badroe of conspiracy to commit robbery. It is the Crown’s submission that the preliminary inquiry judge only briefly mentioned the two long wiretaps of March 12 and May 12, 2018 and did not refer at all to the 14 intercepts on May 14, 2018 — the day of the planned robbery.

[61] That said, it is clear from the preliminary inquiry judge’s reasons that he did, in fact, consider the May 14, 2018 intercepts. At p. 44 of his reasons, he stated as follows:

On March 12th, 2018, and again on May 12th and May 14th, 2018, they appear to be talking about the possibility of robbing other drug dealers to get money to finance their own activities

[62] Again, there is no obligation on the preliminary inquiry judge to recite every detail of the evidence, and again, I find no loss of jurisdiction: R. v. Toy, at para. 22; R. v. R.E.M., at para. 20.

[63] Overall, I am not persuaded that the preliminary inquiry judge did not consider the evidence as a whole as required by s. 548(1) of the Code, or that he reviewed it in a piecemeal fashion. I accept that his reasons are not laid out in the more organized manner of Chaffe J., who presided over a parallel preliminary inquiry dealing with committal of other alleged 5PG constituents. However, when the preliminary inquiry judge’s reasons are read in their entirety, it can be seen that he took a holistic approach to all the evidence. He referred to social media evidence; he referred to numerous contacts among the parties; he recognized that the organization operated in the Weston Road area; and he considered the nexus or linkage among the types of evidence and the various parties.

[64] I find no loss of jurisdiction on this basis.

Failure to Test the Evidence against the Essential Elements of the Offence

[65] The Crown submits that the preliminary inquiry judge did not refer to criminal organization law except for a few brief references to R. v Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211, did not explicitly state the test for committal and did not review the elements of the relevant sections of the Code. Given these omissions, the Crown position is that it cannot be inferred that the preliminary inquiry judge knew of the relevant Code provisions. The Crown’s position is that since the preliminary inquiry judge never tested the evidence against the appropriate standard, the preliminary inquiry judge made an error of jurisdiction.

[66] It is well established that judges are presumed to know the law, and not required to set out the elements of an offence in any formulistic manner.

[67] As Doherty J.A. stated in R. v. Morrissey (2002), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524:

Trial judges are presumed to know the law. That presumption must apply with particular force to legal principles as elementary as the presumption of innocence. Where a phrase in a trial judge’s reasons is open to two interpretations, the one which is consistent with the trial judge’s presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law.

In any event, it is wrong to analyze a trial judge’s reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole. Furthermore, they must be read with an appreciation of the purpose for which they were delivered. Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles. [Citations omitted.]

[68] The preliminary inquiry judge began his reasons by stating as follows, at pp. 2-3:

The criminal organization charges in this case require sufficient evidence that the accused in question engaged with a structured group that had at least three members and continuity in the enterprise of trafficking in controlled drugs. The governing law establishes that a criminal organization must be something more than a conspiracy or a party offence or a group of individuals who have come together for a single continuing offence. There has to be some structure, which means that there must be some command and control system, but it need not be anything more than a very rudimentary system. It may be a hierarchical structure with primary leaders exercising control through lieutenants and sub lieutenants, or it may be some looser structure with a more collective decision making. What’s required is that there is continuity as a coordinated collective over a reasonable period of time in the practice or execution of a succession of activities in this case associated with drug trafficking.

[69] With respect to Mr. Badroe, the preliminary inquiry judge began with a review of some of the evidence against Shain Henry and stated as follows, at pp. 40-43:

Bearing in mind the governing understanding of a criminal organization as established by the Supreme Court in R. v. Venneri, I find that there’s no reliable evidence capable of implicating Shain Henry with that organization other than as a person who dealt with other men who have been implicated as members of the loosely organized group. As I’ve already attempted to make clear, finding that the organization is loosely structured doesn’t mean that we can implicate any person who looks like they may be loosely connected to one or more of the individuals who appear to be participants in the loose structure. Where the structure is loose and virtually amorphous, it will be harder to establish the necessary linkage to connect possible associates with the organization, not easier. It’s axiomatic that the members of a drug trafficking organization interact and traffic with non-members. That’s the whole purpose of the organization. Uncertainty as to the structure and membership within the group doesn’t permit us to fill out the ranks on the basis of suspicion.

The case against Kemarr Badroe is similar to the case against Shain Henry. There was evidence of trafficking on various dates with different people, mostly random customers with the exception of Debbie Dearing. Most of these deals appear to involve cocaine, but a couple appear to involve small quantities of heroin. There was nothing in the evidence surrounding these transactions that implicated Kemarr Badroe in a criminal organization other than on the usual basis that he must be getting his supply from someone higher up in the food chain, and there could be some structure involved. There was a positive absence of evidence of continuing or regular contact or connection between Mr. Badroe and most of the other men who appear to be principals in the group in question.

The supply question in his case could be answered by the pattern of contacts with Michael Lewis on March 29, 30, April 16, May 26, 29, 31st and June 6 and 7 where Mr. Badroe was apparently buying more substantial quantities of cocaine from Mr. Lewis and some related contacts with Akiel Eubank on May 31st, 2018, where Mr. Badroe appears to be acting as the middleman in a transfer of two ounces of cocaine. But the ongoing connection between Mr. Badroe and Mike Lewis doesn’t make a criminal organization, and there’s no evidence of linkage to a criminal organization that would connect the repeated purchases of controlled substances by a dealer from a supplier anything more than what it appeared to be, drug trafficking in significant quantities over a significant period of time.

[70] The preliminary inquiry judge also did not find that Mr. Badroe’s actions after the shooting of Mr. Felix were intended to advance the interests of the group. He reviewed the intercepted conversations that occurred after that shooting and stated as follows, at p. 43:

There were references to Mr. Badroe in other intercepted conversations, principally those following the shooting of Alex Felix. It appeared that he was present at the shooting and it appeared that he played a part in what happened and apparently attempted to keep Mr. Felix’s car, gun, money and drugs out of police hands after Mr. Felix was shot. But the references are somewhat obscure, and there’s no basis to find that Mr. Badroe’s efforts, whatever they were, were intended to advance the interests of the group. In any event, as far as I can see, the content of much of these conversations is not admissible against Mr. Badroe, and that being the case, it’s impossible to see how they could support the inferences necessary to implicate him in the criminal organization.

[71] In addressing the conspiracy to commit robbery charge against Mr. Badroe, the preliminary inquiry judge stated as follows, at pp. 43-45:

Kemarr Badroe was intercepted talking and texting to a man named Duane Douglas a fair amount. On March 12th, 2018, and again on May 12th and 14th, 2018, they appear to be talking about the possibility of robbing other drug dealers to get money to finance their own activities. On the face of it, these conversations would appear to isolate Mr. Badroe from the criminal organization because it’s more lone wolf activity and there’s nothing in the conversations which suggest that these events, if they occurred, would be sanctioned or tolerated by others. But the real point is that nothing comes of these conversations.

In the March 12th, 2018, conversation Duane Douglas talks about possible targets in Stratford and something that could be possible in Brampton, but the conversation moves on and nothing happens. Two months later, May 12th, 2018, there’s another somewhat similar conversation with more particulars about what might happen to the extent that they even discuss robbing a dealer who’s apparently connected to the criminal organization in this case but nothing happens.

Wiretap investigations often come up with stuff like this, people talking on the phone about a possible crime often in graphic detail but which actually goes nowhere. This is a situation the Supreme Court addressed in R. v. Dery, 2006 SCC 53, [2006] 2 S.C.R. 669 to the effect that criminal liability does not attach to discussions in contemplation of a substantive crime that is on the evidence never even attempted by any of the parties to the discussion, and that’s the case here. On the evidence presented, this was all talk and no action whatsoever.

[72] The preliminary inquiry judge again referred to Venneri when he was reviewing evidence in relation to Mr. Charles. The preliminary inquiry judge stated at pp. 29-30 of his reasons:

This is sufficient evidence to commit Mr. Charles on charges of trafficking or conspiracy to traffic with his brother Jamal, David Dauda and Tim Jack in separate transactions on separate days. There’s also some evidence indicating that Clint Charles went to Oakville to make a sale that went sideways and that he ended up grabbing a baseball bat from the prospective purchaser and breaking some windows, and he will be committed on that. While there’s reason to believe that the evidence reveals only a part of Mr. Charles’ trafficking activities, it’s the evidence that has to support the prosecution’s assertion that Mr. Charles was trafficking in drugs as a member of the criminal organization associated with Joseph Dawkins and Alex Felix, and in that regard it presents a pretty obscure and ambiguous picture. The conversations between the two brothers speak to ongoing joint criminal activity, but two brothers don’t make an organization, and the recurring involvement with Tim Jack doesn’t create sufficient internal continuity or structure and provides no reliable evidence of linkage with the loosely structured organization in which Joseph Dawkins and Alex Felix have been situated. As the Supreme Court made clear in respect of R. v. Venneri, the organization may be loosely structured, but that doesn’t mean that it’s sufficient to identify individuals who might be loosely affiliated with the group in the loose structure in order to get committals. There must be an evidentiary basis to find that the individuals were actual members of the loose structure or contributed to it within the meaning of the criminal organization offences.

[73] The preliminary inquiry judge went on to review Mr. Charles’ drug activity with other alleged members of the organization and stated, at pp. 30-31:

The dealing with David Dauda, who appears to be connected to the criminal organization, appears to be in relation to an obscure reference to a ‘big thing’ Charles says he has for Dauda and a follow-up series of calls about an apparent sale of a couple of hundred dollars’ worth of cocaine to the woman named Michelle. This looks exactly like the kind of thing the Supreme Court said would not support the findings necessary for a criminal organization charge. It’s a typical drug deal.

There’s evidence of multiple telephone calls between Mr. Charles and Joseph Dawkins, but nothing in those conversations that was identified as implicating Clint Charles in a group-related criminal activity. There are multiple telephone calls between Clint Charles and Dalton Young, but the few that appear to be relevant are the ones referenced already which speak to sales of small quantities of drugs, usually marijuana. The same is true with respect to the relevant calls between Clint Charles and Shain Henry.

[74] While the preliminary inquiry judge recognized that there was evidence to establish that Mr. Charles was a drug dealer, he found insufficient evidence to support the allegation of membership in a criminal organization, stating as follows, at pp. 31-33:

Clint Charles seems to be a local figure of some significance. He clearly knows a lot of the men identified as defendants in this broadly based prosecution. But that’s not surprising given that it’s a neighbourhood and a group of young men of similar background. He’s clearly active in drug trafficking, which is a fact that also explains his association with other men who are also active in drug trafficking. But there’s a dearth of evidence implicating him in the structure or the organization that is the centerpiece of this prosecution.

At the end of the day I find that there is sufficient evidence implicating Clint Charles in the substantive charges of trafficking and conspiracy to traffic, to cover off all of the charges that could possibly be left to the jury, and no further inferences are required or supported that would go to the allegation of membership in a criminal organization, a conclusion which is rendered insurmountable in my view in light of the positive evidence that Clint Charles was not a member of the loosely structured criminal organization that was demonstrated in the evidence as presented in this case.

[75] As stated previously, the preliminary inquiry judge did commit Mr. Young to trial on the s. 467.12 offence of committing an indictable offence for the benefit of, at the direction of, or in association with a criminal organization. At pp. 36-37 of his reasons, the preliminary inquiry judge dealt with the evidence against Mr. Young and stated the following:

But on the totality of the evidence, the inference is that Dalton Young is a very active street level dealer in small quantities of drugs at the lowest level of the trafficking hierarchy, and couching that in terms of a criminal organization or this criminal organization charge really doesn’t add anything to the prosecution. Having reviewed the jurisprudence dealing with criminal organization offences, I find it difficult to accept that it was intended to capture street level dealers like Dalton Young based on their day-to-day drug trafficking activities as opposed to what appear to be principals like Joseph Dawkins or players like Carl Brammall and O’Shane Chisholm who are engaged in general gang-related activities including the possession, distribution and use of guns and violence. But there is sufficient evidence linking Dalton Young and his drug trafficking to Joseph Dawkins in his capacity as a principal of the loosely structured group, to implicate Dalton Young in the offence of trafficking for the benefit of, at the direction of or in association with a criminal organization following the reasoning in Venneri, although Mr. Young certainly is not in the same position as Mr. Venneri.

[76] The Crown further submits that the preliminary inquiry judge erred by first deciding if an accused was a member of the organization (as opposed to lesser forms of involvement captured by the criminal organization offences) in order to determine committal. The Crown relies on, among other things, a question that the preliminary inquiry judge asked during its submissions on June 26, 2019: “My interest, is he a member. Have you got evidence that he’s a member of a criminal organization?” In my view, this isolated question cited by the Crown cannot be taken out of context to conclude that preliminary inquiry judge did not know the essential elements of the relevant criminal organization provisions of the Code.

[77] Rather, the preliminary inquiry judge examined each of the Respondents’ interactions with what he found to be a loose organization of men carrying on drug trafficking and related criminal activities in the Weston Road area at the relevant time, and their interactions with those men whom he was satisfied were constituents of the organization. This exercise resulted in the preliminary inquiry judge committing some, but not all, of the accused before him for trial on the criminal organization offences. It can be understood from his differentiation among the eight accused that he was aware of the legal elements of the offences, and that he applied them to the factual context specific to each accused.

[78] For these reasons, I am not persuaded that the preliminary inquiry judge failed to test the evidence against the essential elements of the criminal organization offences. As such, there was no loss of jurisdiction on this basis.

[79] The Crown further submits that the preliminary inquiry judge did not test the essential elements of the conspiracy to commit robbery offence that Mr. Badroe was facing, noting that the preliminary inquiry judge did not refer to the law of conspiracy. I reiterate that the judge is presumed to know the law. That said, the preliminary inquiry judge did refer to R. v. Déry, 2006 SCC 53, [2006] 2 S.C.R. 669, a case which held that criminal liability does not attach to fruitless discussions in contemplation of a substantive crime that is never committed, nor even attempted, by any of the parties to the discussions. He reviewed the intercepts between Mr. Badroe and his alleged co-conspirator, Duane Douglas, and found that nothing came of those conversations. It cannot be found that he failed to test the evidence against the essential elements of conspiracy to commit robbery.

Weighing Competing Inferences

[80] The Crown submits that the preliminary inquiry judge committed a jurisdictional error because he preferred inferences favourable to the accused to inferences favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 25.

[81] In support of this position, the Crown refers to its submission to the preliminary inquiry judge that the 5PG videos could be used to draw an inference that persons appearing on the videos did so in part to promote the criminal organization’s activities. In an exchange with the Crown during submissions, the preliminary inquiry judge indicated that the reality is that people make videos and post videos by the bushel load for other than criminal reasons. In this same exchange, the preliminary inquiry judge stated that the inferential reasoning about the videos proposed by the Crown was so weak that it did not meet the necessary standard.

[82] The Crown further points to what it claims are reasonable inferences to be drawn from the evidence relating to the shooting of Mr. Felix. In this regard, it notes the evidence that Mr. Badroe moved Mr. Felix’s car and drugs right after the shooting and submits that the preliminary inquiry judge improperly rejected the inference that Mr. Badroe’s activities were consistent with being a member of, or associated with, a criminal organization. As stated, the preliminary inquiry judge determined that there was no basis for the finding proposed by the Crown and that, in any event, many of the conversations that support the Crown’s position were inadmissible against Mr. Badroe (see p. 43 of the decision).

[83] At p. 43 of his decision, the preliminary inquiry judge went on to say:

There’s also the fact that the references to Mr. Badroe are unlike the references to Carl Brammall or some of the other defendants. He isn’t described as a reliable member of the group. Rather, he is described as being unreliable in some pretty unflattering terms. That doesn’t mean that he wasn’t also a member of the loosely structured group, but it certainly isn’t evidence or information that would support the inference that he was.

[84] The Crown further suggests that the preliminary inquiry judge improperly weighed inferences by rejecting the inference that the regular association of both Mr. Charles and Mr. Young with known members of a criminal organization could show that Mr. Charles and/or Mr. Young were involved with a criminal organization. The preliminary inquiry judge stated at p. 31 of his reasons:

[85] The Crown also refers to an intercept between Mr. Charles and his cousin, Jamal Charles. The inference the Crown proffered was that Clint Charles was advising his younger cousin to be careful who he talked with about having guns, because he might get drawn into violence, or be overheard on wiretaps, whereas the preliminary inquiry judge considered the statement to be Mr. Charles’ disavowal of participation in the criminal organization.

[86] On this point, at pp. 32-33 of his reasons, the preliminary inquiry judge stated the following with respect to Mr. Charles:

Except that in Clint Charles’ conversations, he is portraying himself in quite a different light [than Joseph Dawkins]. He’s clearly talking from a position he apparently believes is independent of the criminal organization such as it was, and he’s advising his brother Jamal to follow his example and stay clear of dealings with the others as part of their organization. He’s cautioning Jamal against becoming part of others’ business or letting them into their affairs. It’s possible that a person could attempt to persuade another that he’s not part of a criminal organization without it constituting a reliable statement of his actual status and it’s certainly the case that a trier of fact is not required to take a subject’s intercepted statements at face value, although my capacity to determine the weight to be given to a piece of evidence is obviously strictly limited. To the extent that I have that capacity, it’s reflected in the fact that I’m obliged to draw the reasonable inferences suggested by the prosecution even if there are competing inferences that look just as good if not better, but that doesn’t entitle me to ignore relevant evidence let alone to interpret a statement clearly disavowing participation in a criminal organization as evidence that the subject actually was a member of such an organization. At the end of the day I find that there is sufficient evidence implicating Clint Charles in the substantive charges of trafficking and conspiracy to traffic, to cover off all of the charges that could possibly be left to the jury, and no further inferences are required or supported that would go to the allegation of membership in a criminal organization, a conclusion which is rendered insurmountable in my view in light of the positive evidence that Clint Charles was not a member of the loosely structured criminal organization that was demonstrated in the evidence as presented in this case.

[87] The Crown also submits that the preliminary inquiry judge improperly weighed inferences when he dismissed the conspiracy to commit robbery charge against Mr. Badroe. In particular, the Crown submits that the preliminary inquiry judge failed to deal with the inference that an agreement to rob crystallized in the May 12th call and continued until May 14, 2018 at 8:51 p.m. when Mr. Badroe asked Duane Douglas whether they were robbing “these youths” or not.

[88] In R. v. Arcuri, McLachlin C.J. addressed the concept of permissible weighing and stated as follows, at paras. 22 and 23:

The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge’s task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt’s Manual of Criminal Evidence (1998), at §8.0 (“[d]irect evidence is evidence which, if believed, resolves a matter in issue”); McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at §2.74 (direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial”). It is for the jury to say whether and how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.

The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“circumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Emphasis original.]

[89] The Chief Justice then went on to consider any exculpatory evidence, at paras. 29-30:

The question that arises in the case at bar is whether the preliminary inquiry judge’s task differs where the defence tenders exculpatory evidence, as is its prerogative under s. 541. In my view, the task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true. However, where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e., including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[Emphasis original.]

[90] In R. v. Deschamplain (2003), 2003 CanLII 52134 (ON CA), 173 C.C.C. (3d) 130 (Ont. C.A.), at paras. 29-33, the Court of Appeal for Ontario clarified the scope of review applicable when the Crown seeks to review a discharge by way of certiorari:

The reviewing justice’s conclusion is supported by the following passage from the reasons of Watt J. in R. v. Saunders, [1996] O.J. No 518 at paras. 49 and 50 (S.C.J.), a passage she cited in her reasons.

Where a justice has ordered an accused to stand trial in respect of an offence and, on review, a judge of the superior court of criminal jurisdiction decides that there was no evidence before the justice upon the basis of which the justice, acting judicially, could form the opinion that the evidence was sufficient to order the accused to stand trial, the order to stand trial may be quashed for want of jurisdiction. Without the necessary evidentiary predicate, s. 548(1)(a), the jurisdiction to order an accused to stand trial, is not implicated. See, Re Martin and R.; Re Nichols and R. (1977), 1977 CanLII 1383 (ON CA), 20 O.R. (2d) 45, 41 C.C.C. (2d) 308 (C.A.), aff'd, 1978 CanLII 30 (SCC), [1978] 2 S.C.R. 511, 41 C.C.C. (2d) 342; R. v. Tuske, [[1978] O.J. No. 1253], October 25, 1978 (Ont. C.A.); and, R. v. Seguin (1982), 1982 CanLII 5527 (ON CA), 31 C.R. (3d) 271 (Ont. C.A.)

It would seem to follow, by parity of reasoning, that, where a justice has discharged an accused in respect of an offence after preliminary inquiry and, on review, a judge of the superior court of criminal jurisdiction decides that there was evidence on the basis of which the justice, acting judicially, could form an opinion that the evidence was sufficient to order the accused to stand trial, the order discharging the accused may be quashed for want of jurisdiction. Absence of an evidentiary predicate is necessary to engage the jurisdiction to order a discharge. Where there is such an evidentiary foundation, however, there is no jurisdiction to discharge an accused.

However, both Dambrot J. in R. v. McLarty, [2000] O.J. No. 2429 (S.C.J), which the reviewing justice also cited, and Then J. in R. v. Brown, [2001] O.J. No. 4458 (S.C.J.) have taken a different view of jurisdictional error. I prefer the reasoning in these two cases. Both Dambrot and Then JJ. held that when a preliminary inquiry judge fails to consider all of the evidence tendered in support of a committal, the judge does not commit a jurisdictional error, but an error within the exercise of the judge’s jurisdiction. The error amounts to an error in assessing the sufficiency of the evidence. It is not reviewable.

In McLarty, supra, after thoroughly reviewing all of the pertinent authorities - an exercise I need not repeat here — Dambrot J. summarized his conclusion at para. 79 in these words, on which I rely:

In my view, an error by the preliminary hearing judge in weighing or balancing in the scales, or in measuring or pondering and examining the force of evidence to determine whether or not it is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty is an error made within jurisdiction, and is accordingly not susceptible to prerogative review. As a result, although I disagree with the preliminary hearing judge’s conclusion that there was no evidence before him upon which a reasonable jury properly instructed could return a verdict of guilty of second degree murder, I would not intervene on that basis.

Similarly, in Brown, Then J. wrote at paragraph 35:

It follows from these authorities that where there is no evidence to support a committal for trial any committal made by the preliminary judge must be quashed by means of certiorari as the preliminary judge has acted in excess of jurisdiction. However, if there is some evidence tendered in support of a committal the preliminary judge must examine the sufficiency of such evidence to determine if a committal is warranted. If he determines that a committal is not warranted his decision is not reviewable by certiorari since even though he may be wrong in law as to the sufficiency of the evidence his error is not a jurisdictional error but an error that has been made within the exercise of his jurisdiction.

The corollary proposition, emphasized by Then J., is that review of a committal order must be looked at differently from review of a no-committal order. If a preliminary inquiry judge commits an accused for trial “without any evidence at all” – ‘in the sense of an entire absence of proper material as a basis for the formation of a judicial opinion that the evidence was sufficient to put the accused on trial’ — the error is jurisdictional and thus reviewable: see Re Martin, Simard and Desjardins and the Queen (1978), 1977 CanLII 1383 (ON CA), 41 C.C.C. (2d) 308 (Ont. C.A.) at 340 aff’d 1978 CanLII 30 (SCC), 41 C.C.C. (2d) 342 (S.C.C.). If, however, the preliminary inquiry judge wrongly finds the evidence insufficient to warrant a committal, the error is not jurisdictional. The error is one within the jurisdiction of the preliminary inquiry and thus is not reviewable.

[91] I note parenthetically that, in my view, the issues relating to improper weighing of inferences are the most challenging. This challenge is illustrated by the following passage in R. v. Charles, 2008 ONCA 237, at para. 2:

As the reasons of the preliminary inquiry judge demonstrate, the distinction between a failure to consider relevant evidence in deciding what inference can reasonably be drawn (a jurisdictional error) and the erroneous determination that certain evidence is not relevant to whether a certain inference could be drawn (a non-jurisdictional error) can be very difficult to draw and sometimes seems to turn as much on semantics as on any principled analysis.

[92] The evidence against each of the Respondents has already been reviewed.

[93] In sum, with respect to Mr. Badroe, there was an image of 5PG constituent Leonardo Baychu and Mr. Badroe making a W hand sign on Mr. Badroe’s Instagram account. He posted a video critical of police. An image of Mr. Badroe was seen on the Instagram account of a 5PG constituent. He was seen at the Westwood Burger Bar and with other alleged 5PG associates. He was also seen at 20 Doner Bar & Grill, a restaurant he lived very close to, again with other 5PG constituents, including the alleged leader, Joseph Dawkins. The wiretaps captured contacts between Mr. Badroe and 5PG constituents and associates. He trafficked cocaine, regularly buying from one alleged constituent, whereas his other purchases or sales to alleged constituents appeared to be single instances. Like some 5PG constituents, Mr. Badroe used Debbie Dearing to rent cars for him in exchange for supplying her with drugs. There was no evidence that Mr. Badroe had any relevant tattoos, or that he wore or promoted the clothing associated to the criminal organization.

[94] A summary of the evidence as it relates to Mr. Charles shows that he had two tattoos, one of which apparently memorialized a murdered constituent. Photos of other constituents with 5PG hashtags were on his Instagram account. He made comments on other Instagram accounts about freeing the 5PG. He was on a video allegedly promoting the 5PG, making the W hand sign. He had numerous drug related conversations with others whom the Crown submits are members of the criminal organization and trafficked frequently with members of the criminal organization.

[95] The summarized evidence as it relates to Mr. Young shows that he has tattoos reading 5PG and General, and a tattoo memorializing a murdered constituent. There are images of Mr. Young on the Instagram account of other alleged 5PG members, wearing what the Crown alleges is 5PG associated clothing. He was seen repeatedly at the Westwood and Doner hangouts and was intercepted numerous times speaking with constituents. He trafficked cocaine, heroin and other substances with other constituents. In light of the intercepts, the preliminary inquiry judge was prepared to draw the inference that Mr. Young was working in association with Joseph Dawkins, a known member, such that he was committed on s. 467.12.

[96] In this case, the preliminary inquiry judge examined the social media evidence, and the numerous intercepts among constituents and associates. He weighed the sufficiency of the evidence with respect to the Respondents Badroe, Charles and Young, without making any assessment of credibility or reliability, in order to determine whether it was sufficient to reasonably support an inference of guilt on the criminal organization charges. He found that it was not. Stated differently, the preliminary inquiry judge’s reasons illustrate that he found an inferential gap between the evidence and the inferences necessary to support the elements for committal.

[97] While there are cases where the courts have drawn inferences of participation in a criminal organization from the type of circumstantial evidence found in this case, such as videos, tattoos, clothing and hand gestures (R. v. Evans, 2013 ONSC 2447, 304 C.C.C. (3d) 212; R. v. Brammall, 2019 ONSC 7334; R. v. Charles et al. (16 August 2019), Toronto (Ont. C.J.)), the preliminary inquiry judge did not do so. A review of his decision indicates that in his view, this was just one category of evidence in the chain. When the preliminary inquiry judge reviewed all of the evidence, including some arguably exculpatory evidence as it related to Mr. Charles, he did not find that there was enough to reach a conclusion of guilt for any of the Respondents on the relevant criminal organization offences.

[98] In contrast, the preliminary inquiry judge found that the circumstantial evidence could sustain a reasonable inference of guilt with respect to the other accused who were committed on the criminal organization sections, and in particular, the preliminary inquiry judge found that the circumstantial evidence could sustain a reasonable inference of guilt that Mr. Young trafficked in association with a criminal organization.

[99] In my view, it cannot be said that the preliminary inquiry judge preferred inferences that enured to the benefit of the defence. In finding that there was a criminal organization, even if it was loosely structured, the preliminary inquiry judge bridged the inferential gaps to reach a finding in support of the Crown’s theory. He stated at p. 14 of his reasons:

So as indicated in the course of the hearing, I’m satisfied that there is sufficient evidence to find that there was a loose organization of men carrying on drug trafficking and related activities in the Weston Road area through the period of time in question. That finding on my part follows inevitably from the content of Joseph Dawkins’ intercepted conversations, evidence from surveillance and other pieces of circumstantial evidence disclosed in the compendium filed pursuant to section 540(7).

[100] The preliminary inquiry judge drew other inferences favourable to the Crown. By way of example only, with respect to Mr. Dawkins, at pp. 15-16 of his reasons, the preliminary inquiry judge stated:

There was also evidence of Mr. Dawkins’ interactions with several of the named accused who the Crown alleges were part of the same organization, including O’Shane Chisholm, Alex Felix, Dalton Young and Carl Brammall, which appears to have been aimed at distributing the supply of drugs for sale through street level dealers and protecting the business interests of the group. The interactions with O’Shane Chisholm include the intercepted calls from March 19th and March 20th, 2018, about something Mr. Chisholm refers to as ‘those kicks’ … which he apparently wants to sell to a ‘youth’. Given the content and context of the conversation, I find that it’s a reasonable inference that Mr. Chisholm is talking about selling a gun and that he’s clearing it with Mr. Dawkins as his superior in the criminal organization.

[101] The preliminary inquiry judge was alert to the need to bridge inferential gaps in a circumstantial case like this one. When he considered the evidence about guns, at pp. 17-18, he drew the inferences sought by the Crown:

The acquisition of guns, the use of guns and trafficking of guns is a principal concern addressed by the criminal organization offence. As pointed out several times in the course of the proceeding, in the context of a loosely organized group of men engaged in drug trafficking, such as the one under consideration, the criminal organization offence adds little to the drug trafficking picture. But the introduction of evidence that members of the group were armed and prepared to use guns to advance the interests of the group takes the case to another level.

[102] Overall, I am satisfied that the preliminary inquiry judge weighed the sufficiency of the evidence as he was entitled to do. He did not commit an error of jurisdiction.

[103] Put in the language of R. v. Arcuri, the preliminary inquiry judge properly assessed the reasonableness of the inferences to be drawn from the circumstantial evidence presented by the Crown: R. v. Arcuri, at para. 30. The preliminary inquiry judge considered the whole of the evidence, including the circumstantial evidence of tattoos, videos, clothing, Instagram posts, and intercepted conversations, and decided that the evidence was insufficient to support a finding of guilt on the impugned criminal organization offences.

[104] The preliminary inquiry judge did not prefer inferences favourable to the defence over inferences favourable to the Crown. As noted earlier in these reasons, the preliminary inquiry judge was clearly familiar with the general principle that “where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered”: R. v. Sazant, at para. 18. The critical element in this case is that, after a limited weighing of the whole of the evidence, the preliminary inquiry judge determined that the inferences proposed by the Crown were not reasonable or, put differently, that a reasonable jury properly instructed could not return a verdict of guilty on that basis. Whether the evidence can reasonably support an inference of guilt is properly a matter for the preliminary inquiry judge: R. v. Arcuri, at para. 25; R. v. Turner, 2012 ONCA 570, at para. 30. This is a matter of sufficiency; the Supreme Court of Canada has made clear that “a preliminary inquiry judge’s determination of sufficiency is entitled to the greatest deference”: R. v. Russell, at para. 48.

[105] In conclusion, I add that I disagree with the preliminary inquiry judge’s decision as to the sufficiency of the evidence. In particular, I am satisfied that the circumstantial evidence as it relates to Mr. Badroe, Mr. Charles and Mr. Young was sufficient to support committal on s. 467.11 and that the circumstantial evidence as it relates to Mr. Badroe and Mr. Charles was sufficient to support committal on s. 467.12. However, if errors were made, these are errors made within the preliminary inquiry judge’s jurisdiction. An error as to the sufficiency of evidence is not an error of jurisdiction, and as such, not subject to review.

[106] For all these reasons, the Crown application for certiorari with mandamus in aid is dismissed.

[107] Finally, I wish to thank all counsel for their thorough material and careful submissions.

Croll J.

Released: February 12, 2020

COURT FILE NO.: CR/19/00000153/00MO

DATE: 20200212

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and -

KEMARR BADROE, CLINT CHARLES and DALTON YOUNG

decision on certiorari with mandamus in aid

Croll J.

Released: February 12, 2020

R. v. Badroe, 2020 ONSC 877

Case Summary

Introduction

Background

Criminal Organization Offences

Scope of Review of Certiorari

Crown Position

Evidence

Kemarr Badroe

Finding for Kemarr Badroe

Clint Charles

Finding for Clint Charles

Dalton Young

Reasons for Dalton Young

Was There a Jurisdictional Error?

Failure to Consider the Evidence as a Whole

Failure to Test the Evidence against the Essential Elements of the Offence

Weighing Competing Inferences

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 1