COURT FILE NO.: CR19-0021
DATE: 2021-01-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
D.T.
Applicant
B. Rudnick, for the Respondent
B. Allison, for the Applicant
HEARD at Gore Bay: January 5, 2021
REASONS ON APPLICATION
FOR CERTIORARI
A.D. kurkE j.
Overview
[1] On November 12, 2019 the applicant was committed to trial after preliminary inquiry at Wiikwemkoong, Ontario. He is charged on an 8-Count Indictment with sexual offences and simple assault relating to his daughter, the complainant D.N.T., allegedly committed between 1980 and 2009. He applies to quash all counts on the indictment on the basis that the preliminary inquiry judge exceeded her jurisdiction by committing him to trial without any evidence to prove that the person who answered to the charges in court was the person who committed the offences.
[2] Before the court on November 12, 2019 was an 11-count information. The preliminary inquiry was held only with respect to counts 1, 2, 4, 7, and 11 on that information as on the date of the preliminary inquiry the remaining counts were not eligible for preliminary inquiry. However, subsequent to that hearing, the Ontario Court of Appeal’s decision in R. v. R.S. (2019 ONCA 906) reinstated the applicant’s right to a preliminary inquiry on the remaining charges. In any event, the Crown adduced evidence concerning various of those charges at the preliminary inquiry and had the discretion to indict on them pursuant to s. 574(1)(b) of the Criminal Code. The applicant does not contest committal on those charges, save with respect to the issue of identification.
[3] For the reasons that follow, the application is dismissed.
Facts relating to this application
[4] At the opening of court, Crown counsel indicated that she was present “for the [D.T.] matter.” Counsel then indicated: “I appear for Mr. [T]. He is seated at a table at the back of the courtroom accompanied by his granddaughter.” There followed further comments about the state of the applicant’s health, in which counsel repeatedly referred to the applicant as “Mr. [T].” Counsel stood beside his client while the applicant was arraigned on counts 1, 2, 4, 7, and 11 from an information that alleged offences against “[D.F.T.]”, with a given address in Wikwemikong. On behalf of the applicant, counsel elected trial by a Superior Court judge sitting with a jury.
[5] There was no statement of issues before the court. When asked by the court about it, counsel indicated that he did not see one in his file, and “I have a feeling that that got overlooked and I apologize for that.” Counsel went on to offer:
“I can tell you though, that miraculously, Crown and I have agreed that the issue is the testimony of the complainant and her credibility and that’s the only witness we had anticipated to be called at the prelim. Committal’s an issue, but that’s – that’s really the only issue…”
[6] The applicant is the father of the complainant. She has known him her entire life. In her evidence at the preliminary inquiry, the complainant described numerous instances of physical and sexual abuse at the hands of her assailant, whom she identified as her “father” or her “dad”. She named her siblings and identified her father by three names as “[D.F.T.]” and testified that he had lived with her at an address in Wiikwemkoong. The complainant was not present in court to identify the applicant; she testified by video from outside the courtroom. The address and name given by the complainant were identical to the applicant’s on the information, save that the information had only an initial for the applicant’s middle name, and offered a slightly abbreviated address.
[7] After the lunch recess, while the complainant was still in cross-examination, the Court sought to clarify with counsel his position on committal, in the following words:
THE COURT: Have you revised your view on committal, [counsel]?
COUNSEL: I thought about that over the lunch, and I’m not going to make any submissions, but the problem I have with consenting is that I must confess I didn’t do my homework to validate the requisite statutory provisions and different periods of time as they correlate to the evidence. I know I have to do that at some point. I didn’t think to do it.
THE COURT: Before the end of the day.
COUNSEL: Well, I think we do have the benefit that my friend can seek committal, I’m not going to make any submissions. My friend has the...
THE COURT: Okay.
COUNSEL: ...the right to prefer an indictment thereafter as she chooses. So that’s the position that I’m taking.
THE COURT: Okay.
[8] At the conclusion of the evidence, the Crown amended all relevant counts on consent to add that the offences occurred in Wiikwemkoong. The preliminary inquiry judge discussed with counsel his position on committal after counsel indicated that he would not be making submissions:
THE COURT: You are, by virtue of the fact that you’re not going to make submissions, I understood that you were <viz, not> conceding committal because you haven’t looked at the provisions of the Criminal Code…
COUNSEL: Right.
THE COURT: …for the relevant periods. You were going to hear the submissions of the Crown and you were saying nothing.
COUNSEL: Yeah, I do not intend to make any submissions, if that helps my friend.
THE COURT: So you are in effect – listen, you either concede or you’re not conceding.
COUNSEL: I’m not conceding.
THE COURT: But you’re not making submissions?
COUNSEL: Yes.
THE COURT: Well that makes no sense.
COUNSEL: Well, then I’ll not concede and make submissions and the submissions will be that I don’t…
THE COURT: You’re not opposing what the Crown is suggesting?
COUNSEL: I’m not going to challenge the way my friend chooses to work.
THE COURT: Okay, sounds like we’re conceding.
… SUBMISSIONS OF CROWN
THE CROWN: Those are my submissions, Your Honour.
COUNSEL: I don’t wish to add anything. I understand my friend’s position. I leave it in Your Honour’s hands.
[9] In brief reasons, and with no particular focus on the issue of identification, the preliminary inquiry judge found that the evidence was sufficient for committal on the charges in question, after she considered the cumulative effect of the evidence in its totality.
Committal to trial
[10] A preliminary inquiry judge must commit an accused to stand trial if there is sufficient evidence upon which a reasonable and properly instructed jury could convict: United States v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067. If there is sufficient direct evidence on all of the essential elements of the offence, the judge must commit to trial. Where the evidence is circumstantial, the judge is to engage in a limited weighing of the evidence, to determine whether it is reasonably capable of supporting inferences of guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 21-32.
[11] In this context, if competing inferences are available to the preliminary inquiry judge, it is not part of her task to weigh them and choose among them or assess credibility and reliability. So long as one or more of the available inferences in the field of factual inferences supports guilt, a committal must follow: R. v. Kamermans, 2016 ONCA 117, [2016] O.J. No. 685 (C.A.), at para. 15; R. v. Cinous, 2002 SCC 29, [2002] S.C.J. No. 28, at para. 91.
[12] In review of the decision to commit, the reviewing justice may only act on jurisdictional error: R. v. Kamermans, at para. 13; R. v. Russell, 2001 SCC 53, [2001] S.C.J. No. 53, at para. 28. The reviewing justice may not substitute his or her own view for the view of the preliminary inquiry judge and should defer to the judge’s determinations about the sufficiency of evidence: R. v. Deschamplain, 2004 SCC 76, [2004] S.C.J. No. 73, at para. 23; Russell, at paras. 19, 48. The scope of review on sufficiency is to determine whether there is even a scintilla of evidence on each element of the offence.
[13] It is also jurisdictional error for the preliminary inquiry judge to fail to test the evidence adduced at the preliminary inquiry against the essential elements of the offence charged: R. v. Kamermans, at paras. 14, 16; Deschamplain, at para. 18. Nevertheless, “an exhaustive examination of all of the evidence is not expected”, and mere silence alone in the reasons of the preliminary inquiry judge may not suffice to justify intervention on review: Deschamplain, at paras. 21, 24. A preliminary inquiry judge need not render extensive reasons but must demonstrate that she has considered all the evidence: Deschamplain, at para. 34.
Sufficiency of evidence of identification
[14] Gordon J. dealt with substantially similar facts in an unreported endorsement of June 16, 2020, relating to the case of R. v. P.V. In that case, committal on the issue of identification appears to have been based on the accused’s response to the court in the same name as that identified by the complainant as belonging to the assailant, a relative who had resided with the complainant’s family for a time. Gordon J. refused to accept that, without raising the issue of identity and in the absence of any evidence to the contrary, a person who attends court, answers to the charges and participates in the process may take the position that it has not been proved that he is the person named by the complainant.
[15] In his endorsement, Gordon J. referred to the decision of the Alberta Court of Appeal in R. v. Nicholson, 1984 ABCA 88, in which the court identified four aspects of identification to be considered by the court:
(1) Who is the accused? (2) Is the accused before the court? (3) In the event the accused is referred to in documents tendered as evidence, is the accused the same person referred to in those documents? And (4) has it been proved that the person accused is the person who committed the offence?
[16] It is established in this province that the identity of the name on the information and the name testified to by the complainant can constitute some evidence of identification sufficient for committal at preliminary inquiry or to survive a motion for a directed verdict: R. v. B.(D.), 2007 ONCA 368; R. v. Webster, 2016 ONCA 189, [2016] O.J. No. 1167 (C.A.), at para. 7.
[17] In this case, no statement of issues identified identity as an issue. But the applicant is D.T., the person named in the indictment before this court and as “D.F.T.” in the information that was before the preliminary inquiry court. The complainant identified her assailant by his full name, “D.F.T.”. The middle name that the complainant attributed to her father matched the middle initial on the information, as did the address of the family’s residence and that of her father on the information. Mr. T. was indicated by counsel to have been before the court at the preliminary hearing, and he was arraigned while his counsel stood beside him and indicated his election of mode of trial to the court. This identified the applicant as the individual named in the information.
[18] On the authority of jurisprudence from this province, that is reason enough to dismiss this application, but it is not the only reason. It would be inappropriate for certiorari to issue in the circumstances of this case.
Certiorari as a discretionary remedy
[19] Certiorari is a discretionary remedy and does not issue as of right: R. v. Vasarhelyi, 2011 ONCA 397, at para. 50. It will generally issue unless there is something in the circumstances of the case that would make it right to refuse the remedy, such as where there has been unnecessary delay in seeking the remedy, where the applicant has not been prejudiced by the jurisdictional error as committal was inevitable in any event, or where the applicant has not acted in good faith in seeking the order: R. v Papadopoulos, 2005 CanLII 8662 (ON CA), [2005] O.J. No. 1121 (C.A.), at para. 20.
[20] In the circumstances of this case I find that the applicant is not entitled to the exercise of this court’s discretion on certiorari. That is not to imply that the applicant has acted in bad faith. Rather, in my view the defence conducted the preliminary inquiry in such a way that caused the court not to attend to the issue of identification, in a case where identification could hardly be an issue in any event.
[21] Counsel for the applicant failed to file a statement identifying the issues on which he wanted evidence to be given at the preliminary inquiry and the witnesses from whom he required to hear evidence. Such a filing is mandatory for the party requesting the preliminary inquiry, pursuant to s. 536.3 of the Criminal Code. The purpose of the statement is to set out “the issues on which the requesting party wants evidence to be given at the inquiry”. Logically, the failure to set out a particular issue on a statement disentitles the requesting party from requiring evidence on that issue for committal.
[22] After acknowledging his failure to provide the statement of issues and witnesses, counsel orally reassured the court that the only witness required was the complainant and the “only issue” was the credibility of the complainant. I do not see that the court can be faulted for believing that there was no issue regarding identification in the face of such a statement, which can only be construed as a concession of the issue of identification, among other issues.
[23] And it is not surprising in a case such as this that identification would not be an issue in dispute. How could it be? The complainant testified and identified very clearly that it was her father who was her assailant. The applicant had every opportunity to test or challenge that identification and made no efforts to do so.
[24] The apparent initial concession of the issue of identification by counsel, among other things, will have caused the preliminary inquiry judge to disregard that issue.
[25] At no point afterwards did counsel raise the issue of identification or the sufficiency of evidence about it as requiring the court’s attention. Counsel indicated to the court during cross-examination and at the conclusion of the inquiry that his hesitancy in conceding committal related to his need to correlate the historical statutory offences charged with the evidence in the case. That issue, the only one on which counsel professed the need to satisfy himself, does not form any portion of this application.
[26] The final refusal by counsel to clarify for the preliminary inquiry judge on what issue or issues he focused regarding the insufficiency of evidence is concerning. In an adversary system, the proper time to argue an issue is at the point where that issue falls to be decided. It is not a new proposition that waiting to argue a disputed point only on appeal or review can disentitle the applicant to a remedy: see, e.g., R v. Struk, 1969 CarswellSask 108 (Sask. C.A.), at paras. 4, 5 and 8; Rex v. Silverstone, 1931 CanLII 122 (ON CA), [1931] O.R. 50, at 69; R v. German, (1947), 1947 CanLII 76 (ON CA), 89 C.C.C. 90 (Ont. C.A.) at 104. In the German decision, Hope J.A. quoted Viscount Simon, L.C. from Stirland v. Director of Public Prosecutions, [1944] A.C. 315, as follows (at 328):
"The failure of counsel to object may have a bearing on the question whether the accused was really prejudiced. It is not a proper use of counsel's discretion to raise no objection at the time in order to preserve a ground of objection for a possible appeal.”
[27] More recently, in R. v. Janda, [2003] O.J. No. 326 (Sup. Ct.), the accused sought to quash his committal on drug charges on the basis that the Crown had introduced inculpatory utterances of the accused at preliminary inquiry without proving them voluntary but without objection from the defence. Campbell J. dismissed the application on the basis that the failure to subject the statement to a voluntariness voir dire was a legal issue concerning evidence, and not jurisdictional. Nevertheless, he went on to state (at paras. 22-24):
22 The extraordinary remedies, including certiorari, are discretionary. It is not every jurisdictional error that requires the court to exercise this discretion in favour of the accused. Counsel for the accused, as the Crown points out, "sat in the bushes" and let the judge and the Crown assume there was no issue as to the admissibility of the statement and no need for a voir dire. To exercise the court's discretion in favour of the accused would reward ambush and encourage the defence to lie in wait.
23 There was no unfairness to the accused who had every opportunity to cross-examine the officer as to anything about the statements that might help the accused make full answer and defence at trial.
24 Because the defence sat in the bushes this is not an appropriate case to exercise certiorari discretion in favour of the accused.
[28] In argument on this application, counsel for the applicant insisted that counsel’s duty to a client far outpaced any duty to the court, and that counsel would sometimes be doing a disservice to a client by making submissions on a disputed issue. This is not the forum to weigh the competing obligations owed by counsel to a client and to the court. It suffices to observe that the decision not to raise the issue of identification before the court at first instance can only be viewed as tactical in all the circumstances of the case and disentitles the applicant to relief from this court.
Conclusion
[29] For all these reasons, the application is dismissed.
The Honourable Mr. Justice A.D. Kurke
Released: January 15, 2021
COURT FILE NO.: CR19-0021
DATE: 2021-01-15
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
D.T.
REASONS ON APPLICATION FOR CERTIORARI
A.D. KURKE J.
Released: January 15, 2021