Court File and Parties

Court File No.: CR-21-10 Date: 2022/04/08 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Mitchel Yearley, Applicant

Counsel: Wesley D. Beatty, for the Respondent Killian B. May, for the Applicant

Heard: March 17, 2022

Decision on Application

Justice S.K. Stothart

Introduction

[1] Mitchel Yearley brings this application for certiorari to quash his committal to stand trial on one count of aggravated assault contrary to section 268 of the Criminal Code.

[2] Mr. Yearley submits that the preliminary hearing judge exceeded his jurisdiction when he committed him to stand trial in the absence of sufficient evidence on the issue of identity. He further submits that he was denied natural justice as part of the preliminary hearing when he was not invited to make submissions on the issue of committal.

[3] For the reasons that follow, the Court finds that the preliminary hearing judge exceeded his jurisdiction in committing Mr. Yearley to stand trial in the absence of sufficient evidence with respect to the issue of identity. As such, the application is allowed and the order committing Mr. Yearley to stand trial is quashed.

Evidence Called at the Preliminary Hearing

[4] The complainant, Timmy James Amell, was the only witness called at the preliminary hearing which was held via Zoom on July 16, 2021. Committal and identity were the central issues at the preliminary inquiry.

[5] Mr. Amell testified that on May 30, 2019 he was outside working on the engine of his truck when two guys who lived next door started to drive their dirt bikes around which kicked up a lot of dust in the shared driveway. Mr. Amell was concerned about the dust getting into his engine and went over to speak to the males.

[6] Mr. Amell testified that he went next door and asked the males to not spin in the driveway because he was tearing his engine apart and didn’t want his engine to get full of dirt.

[7] As Mr. Amell turned to leave, he was bitten by a pitbull. He turned around and asked what was going on and asked for an apology. One of the males, whom he referred to at the preliminary hearing as “Mitch Yearley”, told him that his dog didn’t like him.

[8] The male appeared agitated and asked Mr. Amell if he wanted to fight. Mr. Amell put his hands up in a defensive gesture, said “No” and turned to leave. As he was leaving the male punched him the face five to six times. The entire incident took a few minutes.

[9] As a result of this assault Mr. Amell suffered a broken orbital bone and had to have plastic surgery. He testified that he will have to have metal plates in his face for the rest of his life.

[10] Mr. Amell testified that he had never met the man who punched him prior to May 30, 2019, nor had he seen the man since. Prior to the preliminary hearing, he had not identified the perpetrator pursuant to a photo line-up conducted by the police.

[11] Mr. Amell’s evidence with respect to identity was as follows:

MR. BEATTY: Okay. Now, do you know Mr. Mitchel Yearley? ANSWER: I do now, yes. MR. BEATTY: Okay. Well, how did, how did – how do you know him? ANSWER: Well, ‘cause on May 30 th , he assaulted me. MR. BEATTY: Okay. ANSWER: I did not know him before that. MR. BEATTY: And May 30 th of, of what year? ANSWER: Well, that’ll be two years ago now, so I guess 2019. MR. BEATTY: 2019. Have you ever seen him before? THE COURT: He just said no. ANSWER: No. No, I did not know that he resided at that residence. MR. BEATTY: Well, I, I guess I was trying to make the distinction, Your Honour, between knowing him and actually seeing him, like he, he was living in the residence beside you, Mr. Amell? ANSWER: yes, apparently. MR. BEATTY: Okay. But you’d never laid eyes on him before the 30 th of May, 2019? ANSWER: No

[12] Immediately following this evidence, the following exchange took place:

MR. BEATTY: All right. And I’m not sure if counsel is able to tell us, is identity an issue in this particular manner? MR. MAY: It is. MR. BEATTY: Okay THE COURT; Beg your pardon? Identity is an issue for the purposes of the preliminary hearing? MR. MAY: Yes, Your Honour. THE COURT: All right, put your guy behind you. Okay. Go ahead. MR. BEATTY: So the, the gentleman that assaulted you on the 30 th day of May 2019, do you see him in any of the pictures at the top of your screen there, Mr. Arnell? ANSWER: Yes, I do. QUESTION: Okay. And, and just describe him, what’s he wearing, do you know? ANSWER: Well, it looks like a- well, the picture’s pretty small but it looks like a pink shirt, sitting beside his lawyer there. QUESTION: Okay. THE COURT: Indicating the person who answered to the charge. Okay, you can go back now, Mr. Yearley. Okay, thank you.

[13] The only other evidence led with respect to identity was Mr. Amell’s description that the male who assaulted him was around 20 years old, around the same height, but had a smaller frame.

Position of the Parties

[14] The Applicant, Mr. Yearley, submits that the preliminary inquiry judge exceeded his jurisdiction in the following ways:

a. By failing to consider the whole of the evidence and committing Mr. Yearley to stand trial in the absence of sufficient evidence as to the issue of identity; and b. By failing to accord Mr. Yearley natural justice by not providing an opportunity to make submissions on the issue of committal.

[15] The Respondent submits that while the reasons of the preliminary inquiry judge are brief, they demonstrate that he considered the whole of the evidence and concluded that there was sufficient evidence to commit Mr. Yearley to trial.

[16] The Respondent concedes that the preliminary inquiry judge did not ask for submissions from counsel on the issue of committal. However, the Respondent submits that counsel for Mr. Yearley should have raised this issue with the preliminary hearing judge and asked for the opportunity to make submissions. Had counsel done so, the preliminary inquiry judge would likely have afforded him the opportunity to make submissions and would have considered them.

[17] The Respondent submits that even if there was a denial of natural justice, the Applicant has suffered no prejudice as a result.

Legal Principles

[18] The Criminal Code 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.

[19] 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: United States v. Shephard, [1977] 2 S.C.R. 1067 at p. 1080.

[20] If the Crown has adduced direct evidence on all elements of the offence, the preliminary inquiry judge is not permitted to weigh the evidence or make credibility findings. The court must commit the accused even in the face of exculpatory evidence: R. v. Arcuri, 2001 SCC 54 at para. 29.

[21] Where the Crown’s evidence consists of, or includes, circumstantial evidence, the preliminary inquiry judge must engage in a limited weighing of the whole of the evidence to determine whether a reasonable jury properly instructed could return a verdict of guilty. Where there is more than one inference that can be drawn from the evidence, only the inference that favours the Crown is to be considered: R. v. Arcuri, supra. at para. 18 and 29.

[22] While a preliminary inquiry judge is not required to give extensive reasons for decision, he or she must demonstrate that they met the statutory and mandatory duty to consider the whole of the evidence. Failure to do so amounts to jurisdictional error: R. v. DesChamplain, 2004 SCC 76 at para. 34 and 37.

[23] The preliminary inquiry judge’s determination of the sufficiency of evidence is entitled to the greatest deference. It would be improper for a reviewing court to intervene merely because it would have reached a different conclusion from the preliminary hearing judge as to the sufficiency of the evidence: R. v. Russell, 2001 SCC 53 at para. 48, R. v. DesChamplain, supra. at para. 37.

[24] In R. v. Sazant, 2004 SCC 77, at para. 25, the Supreme Court of Canada established three ways in which jurisdictional error might occur in the context of a preliminary inquiry:

a. Where the judge misunderstands the elements of the offence and fails to evaluate the Crown’s evidence against the correct position in law; b. where the judge prefers an inference favourable to the accused over an inference favourable to the Crown; and c. where the judge fails to consider the whole of the evidence.

Analysis

(i) Did the preliminary hearing judge consider the whole of the evidence?

[25] The entirety of the reasons provided by the preliminary inquiry judge in committing Mr. Yearley to trial consist of the following: “…on the evidence that I’ve heard today, you’re committed to stand trial [before a court of competent] jurisdiction on the charge of aggravated assault” .

[26] While a preliminary inquiry judge is not required to give extensive reasons for decision, they are required to give some reasons upon which a reviewing court could determine whether or not he or she met the statutory and mandatory duties outlined in section 548(1) of the Criminal Code.

[27] In this case, the court concludes that the comments by the preliminary hearing judge do not provide “reasons” for why he was satisfied that the evidence met the threshold test for committal. They are simply a conclusory statement, without any recognition of any evidentiary gaps with respect to a central aspect of the charge before the court. They are not sufficient to permit a reviewing court to determine whether the preliminary inquiry judge conducted the analysis required by section 548(1) of the Criminal Code.

[28] This court is satisfied that the preliminary hearing judge’s failure to provide sufficient reasons amounts to a jurisdictional error in this case.

[29] Given this jurisdictional error, this court must go on and review the evidence called at the preliminary hearing to determine whether there was sufficient evidence to put the accused on trial for the offence of aggravated assault.

(ii) Was there some evidence, upon which a reasonable and properly instructed jury could convict?

[30] All of the essential elements of the offence of aggravated assault are found in the evidence of Mr. Amell. He was punched in the face without his consent. That punch resulted in Mr. Amell being disfigured and he underwent plastic surgery to correct that disfigurement.

[31] The sole issue remaining is whether, on the evidence called at the preliminary hearing, a reasonable and properly instructed jury could conclude that Mr. Yearley was the person who punched Mr. Amell.

[32] This requires the court to examine the evidence called at the preliminary hearing with respect to identity, keeping in mind that the court is not to weigh the evidence or make credibility findings.

[33] In-dock identification has been the subject of concern by the courts for some time. This concern was noted in R. v. Williams, where Justice Martin stated “identification of an accused as the offender made for the first time when the prisoner is in the dock possesses particular frailties over and above the normal frailties attaching to identification evidence”: R. v. Williams (1982), 66 C.C.C. (2d) 234 (Ont. C.A.) at para. 4.

[34] In R. v. A.(F.), 2004 ONCA 1055, the Ontario Court of Appeal described in-dock identification as a “show up” in which the only person shown to the witness is the very person suspected to be guilty of the offence charged. In that case, a pre-trial identification and in-dock identification were found to be insufficient to support a conviction: R. v. A.(F.) 2004 CarswellOnt 1055 (Ont. C.A.).

[35] In R. v. Phillips, 2018 ONCA 651 the Ontario Court of Appeal concluded that the trial judge’s instruction to the jury to “give little weight” to the in-dock identification was insufficient. Rather the trial judge was required to instruct the jury that ‘it would be dangerous to rely on in-dock identification”: R. v. Phillips, 2018 ONCA 651 at para. 29.

[36] In R. v. Hay, 2013 SCC 61, the Supreme Court of Canada held that although the credibility and weight of an eyewitness’ evidence sits with the jury, a judge must direct an acquittal upon a motion for directed verdict where the Crown’s case consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror: R. v. Hay, 2013 SCC 61 at para. 41.

[37] The Respondent argues that in-dock identification is presumptively admissible evidence and relies on the decisions in R. v. Hibbert, 2002 SCC 39; R. v. Muir, 2013 ONCA 470 and R. v. Mezzo, [1986] 1 S.C.R. 802. There is no doubt that in-dock identification is admissible. The issue is the weight, if any, to be assigned to it, based on other factors that could add weight to the in-dock identification.

[38] Thus, in R. v. Muir, the Ontario Court of Appeal pointed out that while they were satisfied that the in-dock identification was admissible at trial to provide context, they pointed out that the case was “quite different from the classic case where the in-dock identification is central to the Crown’s case and where, based on a fleeting observation, the witness confidently identifies a stranger for the first time in court”: R. v. Muir, supra. at para 11.

[39] This court accepts that in-dock identification may be admissible for a variety of reasons, including to provide context relevant to specific issues at trial or to prevent a jury from drawing an adverse inference from the failure of the crown to have the witness identify the perpetrator in the courtroom. However, just because in-dock identification evidence is admissible, does not mean that it is some evidence, standing alone, that is sufficient to ground a conviction.

[40] Returning to the test for committal to stand trial, this court must assess whether a reasonable jury, properly instructed, could convict the accused based on the evidence led on the issue of identity at the preliminary hearing. In this case the evidence was:

a. That Mr. Amell had never before met the male who assaulted him; b. That there was a brief interaction, lasting a few minutes, during which Mr. Amell was punched repeatedly in the face; c. That Mr. Amell has never seen the male who assaulted him since; and d. That Mr. Yearley was directed by the court, in the virtual presence of Mr. Amell, to stand behind his counsel immediately before Mr. Amell was asked to identify the individual who assaulted him.

[41] While the evidence of Mr. Amell’s in-dock identification may have been admissible, it did not, standing alone, amount to some evidence upon which a reasonable jury, properly instructed, could convict. The jurisprudence is clear that if this was the only evidence led at trial on the issue of identity, the court would be required to acquit on a motion for directed verdict.

[42] As the test for a directed verdict is the same test to be applied in determining whether there is sufficient evidence to commit an accused to person to trial, this court concludes that that there was insufficient evidence led at the preliminary hearing on the issue of identity to support committing Mr. Yearley to stand trial.

Was there a denial of natural justice?

[43] Given the court’s conclusion with respect to the lack of sufficient evidence led at the preliminary hearing to commit Mr. Yearley to stand trial, it is not necessary to decide whether there was a denial of natural justice when counsel was not invited to make submissions on the issue of committal.

[44] The Court would only note that, had the preliminary inquiry judge invited counsel to make submissions on the issue of committal, he would have had the opportunity to address the issues raised in this application.

Conclusion

For these reasons, the application for certiorari is granted and the order committing Mr. Mitchel Yearley to stand trial is quashed.

Released: April 8, 2022 Justice S.K. Stothart