COURT FILE NO.: CR-21-50000019-00MO
DATE: 20210726
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARC OWUSU-BOAMAH
K. Lockhart, for the Crown
A. Stastny, for Mr. Owusu-Boamah
HEARD: 21 June 2021
S.A.Q. AKHTAR J.
On application for certiorari from the order of Justice Antonio Di Zio made on 16 December 2020 ordering the committal of Mr. Owusu-Boamah to stand trial at the Superior Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The applicant, Marc Owusu-Boamah, was committed to stand trial on charges of kidnapping, extortion, using an imitation firearm, administering a noxious substance, aggravated assault, committing fraud over $5000, and failing to comply with probation.
[2] The applicant applies for an order of certiorari quashing committal on the basis there was no evidence he committed the offences.
[3] For the following reasons, the application is dismissed.
Factual Background
[4] On 25 January 2020, Severin Manov was kidnapped by four men who had previously extorted him for money. Mr. Manov was forced into a car at gunpoint, hit over the head with a metal object, restrained with zip ties, and had a hood placed over his head. Mr. Manov was forced to provide his kidnappers with the PIN code to his bank and credit cards. His captors demanded he make calls to ask people he knew to give him money and contact his bank to increase his credit limit.
[5] Mr. Manov was held captive in a garage for approximately fourteen hours. During that time he was drugged, tortured and threatened.
[6] Sometime later, Mr. Manov was thrown onto the street in the city of Mississauga with hands still zip tied. He ran to a nearby house and police were called.
[7] Mr. Manov was taken to hospital where he was treated for second degree burns as a result of having boiling water poured onto his stomach, legs and genitals.
[8] When shown a photo line-up Mr. Manov was unable to identify his assailants.
[9] During his period of captivity, Mr. Manov’s bank cards were used to conduct financial transactions, many of which were captured on video but none so sufficiently that the users could be identified under the principles set out in R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197. All of the persons using Mr. Manov’s cards were black males of average height and build but on almost all occasions had their faces covered.
[10] The Crown’s key piece of evidence is the use of Mr. Manov’s bank card on 25 January 2020 to conduct a purchase of foreign currency at a financial institution called Cash Money located at Highway 7 and Weston Road in Woodbridge.
[11] The security cameras at this branch were not working at the time of the transaction. The Crown called Ms. Sargena Odisho, the teller who dealt with the transaction. Ms. Odisho had no specific memory of the transaction on this date but gave evidence of how a foreign currency purchase would proceed.
[12] In this case, the man who entered the bank used the applicant’s Cash Money account opened on 25 July 2015. Ms. Odisho explained that in order to open an account a customer had to provide a piece of government identification as well as complete a Cash Money registration form. In this case, when the applicant opened his account, his photograph had been taken and a copy of his SIN card and passport placed in the Cash Money file.
[13] Ms. Odisho also testified to the protocol that governed foreign currency purchases: confirmation of identity by providing name and phone number which would be checked against the Cash Money database profile. If there was a photo contained in the profile, Ms. Odisho would check that it matched the customer. Ms. Odisho testified that if she was not suitably satisfied that the person before her was the same person in the file photo she would ask for a further piece of identification to confirm identity.
[14] The Crown relies upon the 25 January transaction to justify the committal. In response, the applicant does not dispute the transaction took place but argues there was no evidence that he was the person who entered Cash Money on 25 January 2020. Without this link, says the applicant, there was no evidence before the preliminary inquiry judge pointing to him as either principal or party to the offences and no basis for committal.
LEGAL PRINCIPLES
[15] The Criminal Code, R.S.C. 1985, c. C-46, provisions relating to committal can be found in subsection 548(1), which reads as follows:
548 (1) When all the evidence has been taken by the justice, he shall
(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or
(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.
[16] The test for committals is found in United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080: if there is sufficient evidence of criminal charges upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit an accused person to stand trial on those charges.
[17] A preliminary inquiry judge is not permitted to weigh the evidence or make credibility findings. If the Crown has adduced direct evidence on all elements of the offence, the preliminary inquiry judge must commit the accused even in the face of exculpatory evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 29.
[18] When the Crown relies on circumstantial evidence, the preliminary inquiry judge is permitted to engage in “limited weighing” of the evidence. In doing so, the judge does not draw inferences from facts or assess credibility but evaluates “the reasonableness of the inferences to be drawn” from the circumstantial evidence: Arcuri, at paras. 29-30.
[19] Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R. v. Wilson, 2016 ONCA 235, at para. 24; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18. That reasonable inference does not have to be a probable or likely inference: R. v. Dwyer, 2013 ONCA 368, at para. 4. All that is required is that the inference is reasonable and logical: R. v. Katwaru (2001), 2001 24112 (ON CA), 52 O.R. (3d) 321
[20] However, the preliminary inquiry judge must consider the “whole of the evidence” tendered during the preliminary inquiry as it is clear that “Parliament never intended to allow decisions on the discharge of an accused to be made without full regard to all of the evidence”: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 18.
[21] If there is no evidence on an essential element of the charge, it is a jurisdictional error to commit an accused for trial: United States of America v. Shephard, at p. 1080. If, on the other hand, there is a scintilla of evidence, the judge must commit: R. v. Hickey, 2007 ONCA 845, at para. 5; R. v. Olubowale (2001), 2001 24056 (ON CA), 142 O.A.C. 279 (C.A.), at para. 10.
[22] It is also important to note that, on review, the preliminary inquiry judge’s determination of sufficiency of evidence is entitled to the greatest deference. A reviewing court cannot overturn a preliminary inquiry judge’s decision simply because it would have reached a different conclusion. A reviewing court may only quash an order of committal if there is no evidence on an element of the offence: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at paras. 19, 48.
[23] In Sazant, at para. 25, the Supreme Court of Canada identified three ways in which jurisdictional error might occur in the context of a preliminary inquiry:
(1) where the judge misunderstands the elements of the offence and fails to evaluate the Crown’s evidence against the correct position in law;
(2) where the judge prefers an inference favourable to the accused over an inference favourable to the Crown; and
(3) where the judge fails to consider the whole of the evidence.
DID THE PRELIMINARY INQUIRY JUDGE COMMIT JURISDICTIONAL ERROR?
[24] The applicant submits that the sole issue in this application is identity: was there was any evidence that the applicant was one of the men who kidnapped Mr. Manov or, alternatively a party to the offence. The Crown seeks to link the applicant as either principal or party through the 25 January 2020 Cash Money transaction.
[25] There can be very little dispute, for the purposes of committal, that the man who walked into Cash Money was, at the very least, a party to the offences on the indictment. The narrow issue is whether there was some evidence that this man was the applicant.
[26] Here, the Crown adduced evidence that the Cash Money customer fit the general characteristics of the applicant. He also used the applicant’s details when making the foreign currency purchases, effectively identifying himself as the applicant. I agree with the Crown that this would be sufficient evidence to justify committal as it constitutes some evidence that the applicant was the customer.
[27] Although the applicant argues that the man walking into Cash Money could have discovered, borrowed or stolen the applicant’s details, these inferences must be ignored when deciding committal. As previously noted, the preliminary inquiry judge was obliged only to consider the reasonable inference most favourable to the Crown. In this case, one of the reasonable inferences available was that the applicant used his own details at the Cash Money.
[28] Ordinarily, this would constitute sufficient evidence to decide committal in this case.
[29] However, there is more: Ms. Odisho testified that it was her practice that if she had not been satisfied that the person making the purchase was the person depicted in the file, she would have asked for further identification before proceeding.
[30] One reasonable inference to be drawn from Ms. Odisho’s testimony is that she was satisfied that the person drawing the money matched the photograph on file. Another is that if Ms. Odisho was not satisfied that it was the same person she would have asked for further details to confirm that the customer was the applicant.
[31] In either case, the inference would support the Crown’s position that the customer was indeed the applicant. In other words, there was sufficient evidence of identity to overcome the committal threshold.
[32] For these reasons, the application is dismissed.
S.A.Q. Akhtar J.
Released: 26 July 2021
COURT FILE NO.: CR-21-50000019-00MO
DATE: 20210726
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARC OWUSU-BOAMAH
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.