Her Majesty the Queen v. Tivaughn Fraser-McAnuff

COURT FILE NO.: CR-21-10000124-00MO

DATE: 20220802

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TIVAUGHN FRASER-MCANUFF

Defendant/Respondent

COUNSEL:

Sunil Mathai, for the Crown/Applicant

Brittany Smith, for the Defendant/Respondent

HEARD: March 28, 2022, and in writing

MOLLOY J.:

REASONS FOR DECISION

A. INTRODUCTION

[1] Tivaughn Fraser-McAnuff and three other individuals were charged with conspiracy to commit robbery with a firearm between March 30 and March 31, 2020. At the preliminary hearing, Giorgas J. committed the three co-accused on conspiracy to commit robbery, but committed Mr. Fraser-McAnuff only on the included offence of conspiracy to commit theft. The Crown brings this application for certiorari with mandamus in aid, seeking an order quashing the decision in respect of Mr. Fraser-McAnuff and directing the preliminary hearing judge to commit him for trial on the charge of conspiracy to commit robbery.

[2] For the reasons that follow, I find that the preliminary hearing judge erred in jurisdiction by failing to consider the whole of the evidence in reaching his conclusion. This matter is remitted to the preliminary hearing judge for further consideration in light of my ruling.

B. FACTUAL CONTEXT

[3] In March 2020, a large multi-jurisdictional criminal investigation known as Project Sunder was underway, which included wiretap authorizations. As a result of intercepted telephone calls among Selena Everington-Hamm, Ammaan Charley, Carlton Jones and Mr. Fraser-McAnuff on March 30-31, 2020, police believed that these four people were planning an armed robbery at a residence in Scarborough. Police set up surveillance. When it looked as though three of the conspirators (all except Ms. Everington-Hamm) were about to carry out their plan, the police stopped one of the vehicles on a pretext, in a successful attempt to interrupt the commission of the offence. Subsequently, all four were charged with conspiracy to commit robbery with a firearm.

[4] The police initially became concerned due to a telephone conversation between Ms. Everington-Hamm and Mr. Charley at 10:44 p.m. on March 30. In that call, Ms. Everington-Hamm asked for Mr. Charley’s help to break into somebody’s home to steal a sex video that was being used to blackmail her and also to steal the blackmailer’s money. Mr. Charley said that he would shoot the blackmailer in the face and Ms. Everington-Hamm confirmed that she wanted him hurt but also wanted to steal his money. She told Mr. Charley that the blackmailer lived in a basement apartment in Scarborough, near Kennedy Commons, and that two “old people” lived upstairs. She later texted him the address, as being 8129 Sheppard Avenue. As of that time (10:44 p.m.) Ms. Everington-Hamm believed the blackmailer was not at home. She and Mr. Charley agreed to meet at a Wendy’s restaurant at Victoria Park and Sheppard.

[5] At 11:15 p.m., Mr. Charley called Mr. Fraser-McAnuff and told him he “might have a food”, that this would be in Scarborough, and that he was still “figuring it out”. Mr. Fraser-McAnuff asked whether he should leave right away and Mr. Charley told him he would get back to him in 20 minutes.

[6] At 11:44 p.m., Ms. Everington-Hamm called Mr. Charley and told him she was outside the Wendy’s. Ten minutes later, Mr. Charley called Mr. Fraser-McAnuff and told him that he was at a Petro Gas station at 1977 Kennedy Road and that Mr. Fraser-McAnuff should come quickly and bring a “duffle”. Mr. Fraser-McAnuff agreed.

[7] Not long after midnight (12:14 a.m. on March 31), Mr. Charley called Mr. Jones and asked him if “you wanna go on a foods right now”. He told Mr. Jones that the “food” was for “some bread” and that “there’s money and possibly a ring”. He also said that “T-Rex” was coming, an apparent reference to Tivaughn Fraser-McAnuff who had agreed to come 24 minutes earlier. Mr. Charley explained that the target of the robbery lived in the basement apartment and that there were older people living upstairs. He said they might have to “hold the old people” and discussed whether the “food” was a “two man or three man job”. Mr. Jones agreed to meet Mr. Charley at Kennedy and Progress.

[8] Surveillance officers observed a Nissan Rogue and a grey Honda Accord meeting at the Petro Gas station at Kennedy Road and Prospect at 12:25 a.m. Both vehicles are associated with Mr. Charley and Mr. Fraser-McAnuff. At 12:28 a.m., at the request of the surveillance officers, Sgt. Schoch stopped the Rogue (with P.C. Stamplekowski assisting). Sgt. Schoch identified Mr. Charley as the driver. Ms. Everington-Hamm, Mr. Fraser-McAnuff, and two unidentified women were also in the car. After the stop, the Rogue went back to the parking lot at Kennedy and Prospect and parked by the Accord. At 1:09 a.m., Mr. Charley called Mr. Jones and directed him to that same parking lot. A Dodge Charger then arrived and parked next to the Accord and the Rogue. The Rogue and the Charger drove north on Kennedy Road at 1:28 a.m. At 1:32 a.m., Ms. Everington-Hamm texted Mr. Charley with a different address: 11 Inverary Crescent. At 1:37 a.m., surveillance officers saw the Rogue parked at Inverary Crescent.

[9] In a marked police car with emergency lights activated, P.C. Stamplekowski drove up to the parked Rogue and asked the driver, through his open window, whether he had seen two white kids on mountain bikes who were believed to have committed a robbery. The officer “strongly believed” that the driver was the same man identified previously as Mr. Charley. The Rogue then drove away.

[10] Later, the police intercepted conversations between the various participants on the subject of the police stops. They included the following:

• March 31, 2:31 a.m.: Mr. Fraser-McAnuff asked Mr. Charley “what time you’re trying to do this tomorrow” and Mr. Charley responded, “probably like eleven, ten”.
• March 31, 2:37 a.m.: Mr. Fraser-McAnuff received a call from a female who appeared to be his girlfriend. He told her that he “was supposed to eat a food just now” and that they were “scheming on the crib” (slang for residence) when the “boys” (slang for police) stopped them and said they were looking for white youths who had stolen bikes. He said he was in the back of the “whip” (slang for car) and that it was a good thing the whip was legit because he was sitting in it “with [his] shorty”. He said he was “cheesed” and that he would have refused to be searched.
• March 31, 12:13 p.m.: Mr. Jones told a person he was talking to that he had received a call last night about “a food”, that “Grizzly” (an apparent reference to Mr. Charley) had been driving and that they got “drawed down” before he got there. Mr. Jones said that after that, they “took some time breathed off” and then went back. He said that when they arrived at the location, a police car came and “lit up his things” and that the officer said he was looking for two white kids on bicycles. He said this was the same officer who drew Grizzly down earlier.
• April 23, 11:51 p.m.: Mr. Charley told somebody on the phone about the incident, stating that he had been pulled over with T-Rex and two to three females, that they had asked T-Rex for his name, and that the occupants of the vehicle were “riding super dirty, two sticks in the car”.

C. APPLICABLE LAW

[11] There is no dispute with respect to the principles of law to be applied, but it is nevertheless useful to set them out. The position taken by the Crown is that the preliminary hearing judge failed to properly apply some of these principles.

(i) Test for Committal

[12] The preliminary hearing judge was required to determine, based on the whole of the evidence before him, whether there was any evidence which, if believed, could result in a properly instructed jury reaching a verdict of guilty. If so, he was required to commit the accused for trial.[^1]

[13] The test when a case is dependent on circumstantial evidence is essentially the same. However, some limited weighing of the evidence is required to determine whether the evidence is capable of supporting the inferences sought to be drawn. That, however, is the extent of the permissible weighing of evidence. The preliminary hearing judge cannot assess credibility or consider the inherent quality of the evidence, but merely whether the inferences sought can reasonably be drawn. Theories based on mere speculation or conjecture are not reasonable inferences and cannot support a conviction, nor a committal for trial.[^2]

[14] Further, where there are competing inferences that can be drawn from the evidence, the preliminary hearing judge must not choose between them. If there is an inference arising from the evidence that is consistent with guilt, the preliminary hearing judge must draw that inference, regardless of other inferences, even stronger ones, are inconsistent with guilt.[^3]

(ii) Essential Elements: Conspiracy to Commit Robbery

[15] The preliminary hearing judge must be satisfied that there is some evidence on every essential element of the offence charged.

[16] Under s. 343 (a) to (d) of the Criminal Code, robbery can be committed in four ways. Robbery as defined in subsections (a), (b), and (c) requires two acts: theft and violence (or threatened violence). Under subsection (d) a robbery is committed if an accused commits theft “while armed” with a weapon as defined in the Criminal Code.

[17] All four accused in this case were charged with conspiracy to commit robbery with a firearm. There is no specific offence of “robbery with a firearm” in the Criminal Code. Robbery within the meaning of s. 343(d) does not require the use of a weapon, but merely that the accused be armed with a weapon. However, if a firearm is used in the commission of a robbery, this can be a factor in sentencing. Particularization of the robbery charge as being “with a firearm” puts the accused on notice that the Crown may rely on the more severe sentencing provisions under s. 344 of the Criminal Code upon conviction.[^4]

[18] Theft is an included offence in the charge of robbery.

[19] In order to establish conspiracy to commit robbery, the Crown must prove that the accused: (1) intended to agree to commit robbery; (2) entered into a completed agreement to commit that offence; and (3) intended to carry out that agreement. There must be a meeting of the minds to carry out an unlawful object (in this case robbery) and a specific intention to put the common design into effect.[^5]

[20] In R. v. Carter,[^6] the Supreme Court of Canada established a three-stage test for determining whether an accused is guilty of conspiracy to commit a criminal offence. At the first stage of the test, the trier of fact must be satisfied beyond a reasonable doubt that the alleged conspiracy existed. This analysis is based on the whole of the evidence, including what the alleged co-conspirators have said and done in furtherance of the common unlawful object.[^7]

[21] If the first step in the Carter test is met, the second question is whether the accused is probably a member of the conspiracy. This part of the test is conducted on the civil standard of proof on a balance of probabilities. At this stage, only evidence directly admissible against the particular accused in question may be taken into account. Hearsay evidence and things said and done by other members of the conspiracy are not properly considered at this stage. The issue is whether, based on evidence directly admissible against this accused, essentially his own words and actions, he is a member of the conspiracy. However, the words and conduct of the accused do not have to be viewed in isolation, but rather should be considered within the overall context of the whole of the evidence.[^8]

[22] As stated by Weiler J.A in R. v. Gagnon:

No objection is taken with respect to the trial judge’s charge to the jury in respect of the first and third stages of the approach to conspiracy. The objection is with respect to the second stage of the analysis in which the trial judge told the jury that they could consider, “all the evidence as a background against which to interpret the acts and declarations of the person in question.” The appellants concede that the jury was entitled to consider the evidence in a contextual background. The decision of this court in R. v. Filiault and Kane (1982), 1981 CanLII 3165 (ON CA), 63 C.C.C. (2d) 321; aff’d (1985), 15 C.C.C. (3d) 352 (S.C.C.) makes this clear. The appellants submit, however, “…the hearsay declarations of an alleged co-conspirator cannot form part of the evidence which a trier of fact is permitted to consider as context or background to interpret the acts or declarations of an accused.” This submission is incorrect in law as facts and decision in Filiault and Kane illustrate. On a particular date in front of his residence, Kane handed a package to Filiault who handed the package to Power, the alleged co‑conspirator. Power, under virtually continuous surveillance, then drove to a restaurant and handed a package containing drugs to an undercover officer. The package contained one ounce of methamphetamine. At the conclusion of the Crown’s case, the trial judge granted a directed verdict of acquittal. He took the view that he could not consider Power’s delivery of the drugs to the undercover officer in deciding whether the accused was probably a member of the conspiracy because it was a hearsay act of a co-conspirator. In allowing the Crown’s appeal, the court held that the exchange of packages between Filiault and Kane could be considered against the background of the evidence of Power’s subsequent actions in giving the package to the undercover officer. Otherwise, the evidence of the exchange would be meaningless. Martin J.A. stated in Filiault and Kane, supra, at p. 326:

R. v. Baron and Wertman, supra, merely emphasizes a basic principle that a person can only become a participant in a conspiracy as a result of his own acts or declarations, that is, by his own conduct or utterances….The decision in that case does not say that a defendant’s conduct or utterances must be viewed in isolation, divorced from the context in which they occurred or that they cannot be interpreted against the picture provided by the acts of the alleged co-conspirators. [Emphasis added.]

In order to give meaning to the accused’s own acts and utterances it is permissible to consider them against the context of the acts of others which may be hearsay.[^9]

[23] If the second step of the Carter test is established on a balance of probabilities, the trier of fact would then proceed to the third step, which involves considering whether based on the whole of the evidence the accused’s participation in the conspiracy has been proven beyond a reasonable doubt. At this stage, evidence of what the other conspirators said and did in furtherance of the conspiracy is admissible.[^10]

[24] Given the test before the preliminary hearing judge, the third stage of the Carter test is never reached. If there is some evidence directly admissible against the accused that he was a member of the conspiracy, that is sufficient to meet the Carter test for purposes of committal for trial. At the preliminary hearing, this evidence does not even need to meet the balance of probabilities standard.

(iii) Standard of Review

[25] My role on judicial review of the preliminary hearing judge’s decision is not to substitute my own views as to the sufficiency of the evidence, nor is it to determine whether particular inferences are reasonable or unreasonable. I may only interfere with the preliminary hearing judge’s decision if he made an error going to jurisdiction. The Supreme Court of Canada in R. v. Sazant referred to three types of jurisdictional errors that would support quashing the decision of a preliminary hearing judge on certiorari:

(i) misunderstanding the essential elements of the offence;

(ii) preferring an inference favourable to the accused over an inference favourable to the Crown; and

(iii) failing to consider the whole of the evidence.[^11]

D. THE DECISION OF THE PRELIMINARY HEARING JUDGE

[26] The preliminary hearing judge determined that there was evidence of a conspiracy to commit robbery. He based that decision on the wiretap evidence of calls between Mr. Charley and Ms. Everington-Hamm in which there was an agreement to break into an apartment, steal things, and hurt the person living there. Having found there was evidence that those two individuals had conspired to commit robbery, the preliminary hearing judge further held that there was evidence of Mr. Charley then recruiting others to assist.

[27] With respect to the involvement of Mr. Jones, the preliminary hearing judge referred to telephone calls between Mr. Jones and Mr. Charley in which there was discussion of a “food” in Scarborough and about the possibility of using force against the old people upstairs making it a three-man job. There was also evidence of Mr. Jones arriving at the scene at the appointed time, which the preliminary hearing judge accepted was some evidence of his agreement to participate in the robbery plan discussed in the earlier telephone calls.

[28] The preliminary hearing judge therefore concluded that there was sufficient evidence to commit Ms. Everington-Hamm, Mr. Charley, and Mr. Jones on the charge of conspiracy to commit robbery. The actual charge was conspiracy to commit the offence of “robbery with a firearm.” However, the preliminary hearing judge ruled that there was no evidence of any agreement to use a firearm in the commission of the robbery. He therefore committed those three accused on the charge of conspiracy to commit robbery.

[29] With respect to Mr. Fraser-McAnuff, the preliminary hearing judge referred to the telephone discussions between him and Mr. Charley in which Mr. Fraser-McAnuff agreed to participate in “a food” in Scarborough and was instructed to bring “a duffle”. There was also evidence that later that night, Mr. Fraser-McAnuff was in a car near the designated meet-up spot along with Ms. Everington-Hamm and Mr. Charley.

[30] However, the preliminary hearing judge did not commit Mr. Fraser-McAnuff on the charge of robbery along with the other three, but only on the charge of theft. His reasons in that regard were as follows:

Mr. Fraser-McAnuff is in a different position than the other three defendants. I cannot accept the Crown’s submission that “food,” and Mr. Fraser-McAnuff’s agreement to participate in the “food” means agreement to commit a robbery. It is certainly indicative of an agreement to participate in the crime, and with the instruction to bring a “duffle”, it is likely a theft. Mr. Fraser-McAnuff will be committed to stand trial on conspiracy to commit theft in substitution of the count as described in Count 7.[^12]

E. THE POSITIONS OF THE PARTIES

[31] The Crown submits that the preliminary hearing judge committed a jurisdictional error by engaging in impermissible weighing of the evidence. He erroneously preferred the competing inference that engaging in a “food” was merely a theft over the inference sought by the Crown that this was a reference to a planned robbery. In addition, the Crown submits that the preliminary hearing judge failed to consider the whole of the evidence in determining that there was no evidence to support an inference of an agreement to commit a robbery, which would also be a jurisdictional error. Accordingly, the Crown seeks an order quashing the decision in respect of Mr. Fraser-McAnuff and an order of mandamus directing the preliminary hearing judge to commit Mr. Fraser-McAnuff on the charge of conspiracy to commit robbery.

[32] Defence counsel submits that the preliminary hearing judge did not create his own competing inference or prefer one inference over another, but rather concluded that there were “gaps in the inferential chain” that resulted in there being an insufficient basis to draw the inference suggested by the Crown. Further, she argues that the preliminary hearing judge considered the whole of the evidence in reaching his decision. Therefore, the defence submits the application should be dismissed on the basis that there has been no jurisdictional error permitting review.

F. ANALYSIS

(i) Robbery with a Firearm

[33] The Crown has not sought to review the committal of the other three accused on the charge of robbery, as opposed to robbery with a firearm. I agree with the Crown that the particularization of the charge by referring to the firearm relates only to the sentencing provisions in the Criminal Code and does not become an essential element of the charge.[^13] However, the ruling by the preliminary hearing judge has no practical impact on the outcome of the trial. The charge is robbery, which can be proven in any of the four ways set out in s. 343 of the Criminal Code. The Crown has already given notice of its position that there was an intention to use firearms in this robbery, attracting heavier sanctions for the accused if convicted. This is a matter to be considered by the sentencing judge regardless of whether it is particularized in the indictment based on the committal.

(ii) Competing Inferences

[34] Early in his reasons, the preliminary hearing judge correctly stated the governing legal principles with respect to drawing inferences in a preliminary hearing, referring to the test established in R. v. Arcuri. It is also apparent from the exchanges between counsel and the Bench in the course of argument that the preliminary hearing judge clearly understood the law in this area. I do not agree with the Crown that the judge drew his own inference as to there being a conspiracy to commit theft and preferred that inference to the competing inference suggested by the Crown that Mr. Fraser-McAnuff agreed to participate in a robbery. It was the defence who argued that the evidence supported only a committal on theft rather than robbery; this was not a theory put forward by the judge himself.

[35] I also reject the Crown submission that the preliminary hearing judge engaged in impermissible weighing of the evidence and preferred the defence theory to that of the Crown. Immediately after dealing with the robbery charge at Count 7, the judge addressed a further charge against Mr. Fraser-McAnuff alleging that he was a shooter in a gun fight that occurred on May 22, 2020. After reviewing the evidence on that count, the preliminary hearing judge held, “It is certainly a reasonable inference, if not the only one, of there being some evidence that Mr. Fraser-McAnuff was involved in a gun fight on May 22.” He found this sufficient to commit him for trial on that count, applying the Arcuri standard. The preliminary hearing judge clearly understood that where there were competing reasonable inferences, he was required to choose the inference consistent with guilt.

[36] It is not necessary for the preliminary hearing judge to specifically state that the Crown’s theory amounts to no more than conjecture or speculation. Read in context, particularly in light of his proper articulation of the test earlier in his reasons and his proper application of the test in the very next paragraph, I understand the preliminary hearing judge’s ruling on the robbery count to be based on his finding that the inference suggested by the Crown was not reasonable and could not be drawn from the evidence. I therefore find no jurisdictional error on this point.

(iii) Failure to Consider the Whole of the Evidence

[37] In considering whether there was any evidence of Mr. Fraser-McAnuff being a party to the conspiracy to commit robbery (which he had already found existed), the preliminary hearing judge took into account the following:

• his conversation with Mr. Charley in which he agreed to participate in a “food” in Scarborough;
• the fact that he was told to bring a “duffle”;
• his presence in the car with Mr. Charley and Ms. Everington-Hamm at the relevant time.

[38] From this evidence, the preliminary hearing judge concluded that there was no basis upon which to draw an inference that Mr. Fraser-McAnuff knew that the crime would go beyond mere theft and that theft with violence was being contemplated.

[39] The preliminary hearing judge was correct that only evidence directly admissible against Mr. Fraser-McAnuff could be considered at this second stage of the Carter test. The evidence considered by the preliminary hearing judge clearly fell into that category. However, the preliminary hearing judge appears not to have considered whether there was some evidence that Mr. Fraser-McAnuff was armed with a handgun.

[40] There was direct evidence from Mr. Fraser-McAnuff about being in the car with Mr. Charley and Ms. Everington-Hamm when they were stopped by the police. He talked about this interaction just minutes later in a telephone call with someone who appeared to be his girlfriend. The Crown relies on this conversation as evidence of an admission by Mr. Fraser-McAnuff that he had a handgun with him at the time they were stopped. He was clearly apprehensive about being searched at the time of the police stop and referred to having a “shorty” with him. The Crown submits there is a reasonable inference available that the reference to a “shorty” in that context meant that Mr. Fraser-McAnuff had a firearm on his person at the time.

[41] Although only evidence directly admissible against Mr. Fraser-McAnuff can be taken into account at this stage, it is permissible to consider other evidence in order to put the matter in perspective.[^14] In this regard, it could be relevant to consider that Mr. Fraser-McAnuff likely had access to a gun, given that he was committed on charges in relation to a shootout two months later. Also, Mr. Charley referred to this police stop in a conversation he had with someone in April, at which time he referred to “riding super dirty, two stick in the car”. The only two people in the car who were going to be active participants in the planned crime were Mr. Charley and Mr. Fraser-McAnuff.

[42] Under s. 343(d) of the Criminal Code, a person who commits theft while armed with a weapon is guilty of robbery. This is the case even when the firearm is not used or even shown to the victims of the theft.[^15] There is considerable evidence that the crime was about to be committed when the police intervened and spoke to the occupants of the car in which Mr. Fraser-McAnuff was a passenger. If there is an inference that Mr. Fraser-McAnuff was armed at that time, and that his co-conspirator knew he was armed (hence Mr. Charley’s reference to two “stick” in the car), this could be some evidence of Mr. Fraser-McAnuff agreeing to a planned crime that would constitute robbery within the meaning of s. 343 of the Criminal Code.

[43] In my view, it was incumbent upon the preliminary hearing judge to consider this evidence in determining whether Mr. Fraser-McAnuff could be committed on the conspiracy to commit robbery count. I hasten to add that although this evidence was before the preliminary hearing judge and was referred to in argument, it was not cast in the same way as it was before me. Perhaps that is why he did not refer to it in his reasons. I have considered whether there is any prejudice to the defence because this argument about “shorty” meaning firearm was not explicitly made before the preliminary hearing judge during argument. However, I find no prejudice. The hearing would not have been conducted any differently, nor would different evidence have been presented. This is simply a matter of what inferences can be drawn from the evidence that was presented.

[44] The evidence relied upon by the Crown as showing that Mr. Fraser-McAnuff was in possession of a firearm was part of the evidence before the preliminary hearing judge. Although the judge stated that he had reviewed all of the evidence, there is no reference at all in his reasons on this crucial point. I recognize that it is not necessary for a judge to refer in detail to every single piece of evidence he or she has taken into account. However, where evidence is critical to a determination and is not averted to, that omission takes on more importance. In this instance, I see nothing from the reasons to support a finding that the preliminary hearing judge considered, but rejected, that Mr. Fraser-McAnuff was armed with a gun. I find that the failure to take it into account is a failure to consider the whole of the evidence and constitutes jurisdictional error.

G. REMEDY

[45] The Crown seeks an order by way of mandamus directing the preliminary hearing judge to commit Mr. Fraser-McAnuff on the charge of conspiracy to commit robbery. The defence’s primary position is that the preliminary hearing judge did consider all the evidence. However, in the alternative, defence counsel submits I should remit the matter to the preliminary hearing judge for reconsideration rather than, in effect, making the determination myself.

[46] The Crown argues that Mr. Fraser-McAnuff being in possession of a firearm is an available inference from the evidence and that committal for trial on robbery is an inevitable consequence of drawing that inference. The defence position is that there was no evidence before the preliminary hearing judge that “shorty” is slang for “gun”, referring to several cases in which “shorty” was used to refer to a girlfriend, and argues that the inference sought by the Crown is not rooted in evidence. In response, the Crown countered that slang can have different meanings in different contexts, and noted that Ontario courts have accepted other female gendered nouns as coded language for firearms.[^16] I note as well that context is important and it is reasonable to consider whether Mr. Fraser-McAnuff would use “shorty” to refer to a girlfriend while talking on the phone to a person who appears to be his girlfriend.

[47] In my view, and order of mandamus directing the preliminary hearing judge to commit Mr. Fraser-McAnuff for trial is not the appropriate remedy in this situation. Such a remedy is only appropriate where committal would be inevitable based on the evidence. My role is not to examine the evidence and determine whether particular inferences can or should be drawn. Nor is it appropriate for me to indicate whether in my view the inference sought by the Crown is reasonable and available on the evidence as opposed to speculative. It is for the preliminary hearing judge to determine whether based on the whole of the evidence, including the reference to the “shorty” and other related evidence I have set out above, he remains of the view that there is no available inference that Mr. Fraser-McAnuff had a gun he was intending to use in the commission of the theft, that this was known to Mr. Charley (his co-conspirator), and that this could constitute conspiracy to commit robbery. Although the preliminary inquiry judge may well commit Mr. Fraser-McAnuff to trial on this basis, that is not the only possible result.[^17]

[48] I am therefore remitting the matter to the preliminary hearing judge for further consideration based on these reasons.

_________________________ MOLLOY J.

Released: August 02, 2022

COURT FILE NO.: CR-21-10000124-00MO

DATE: 20220802

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TIVAUGHN FRASER-MCANUFF

Defendant/Respondent

REASONS FOR JUDGMENT

MOLLOY, J.

Released: August 2, 2022

[^1]: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 14-17.

[^2]: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 37-38.

[^3]: Sazant, at para. 18.

[^4]: R. v. Watson, 2008 ONCA 614, 240 O.A.C. 370, at paras. 66-73; R. v. Manley, 2011 ONCA 128, 268 C.C.C. (3d) 40, at paras. 55-61; R. v. Moore, 2012 ONCA 770, at paras. 1-8; R. v. Wills, 2014 ONCA 178, 379 D.L.R. (4th) 575, at para. 48.

[^5]: R. v. Marshall, 2015 ONSC 4593, at paras. 33-40, and cases referred to therein.

[^6]: R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938.

[^7]: R. v. Dawkins, 2021 ONCA 113, 155 O.R. (3d) 111, at para. 40.

[^8]: Ibid, at para. 41.

[^9]: R. v. Gagnon (2000), 2000 CanLII 16863 (ON CA), 147 C.C.C. (3d) 193 (Ont. C.A.), at para. 51; R. v. Filiault and Kane (1982), 1981 CanLII 3165 (ON CA), 63 C.C.C. (2d) 321, aff’d 1984 CanLII 72 (SCC), [1984] 1 S.C.R. 387.

[^10]: Dawkins, at para. 42.

[^11]: Sazant, at para. 25.

[^12]: Transcript of Reasons, August 12, 2021, at pp. 11-12.

[^13]: See, e.g., Watson, at paras. 66-73; Manley, at paras. 55-60; Wills, at para. 48.

[^14]: See para. 22, above, and footnote references therein.

[^15]: R. v. Saunders, [1996] O.J. No. 518 (Gen. Div.), at para. 37; R. v. Meszaros, 2013 ONCA 682, 309 C.C.C. (3d) 392, at para. 44; R. v. McGuigan, 1982 CanLII 41 (SCC), [1982] 1 S.C.R. 284, at p. 318.

[^16]: R. v. Ceballo, 2007 ONCA 715 at para. 4; R. v. Jones, 2013 ONCJ at paras. 106-108 and 190-195; R. v. Gardner, 2013 ONCJ at para. 59 and 152-153; R. v. Kalonji, 2016 ONCJ 706; R. v. Bisoon, 2019 ONSC 3572 at paras. 9-10; R. v. Marshall, 2015 ONSC 4593 at para. 19; R. v. Kashay, 2015 ONSC 1775 at para. 11.

[^17]: R. v. Thomson (2005), 2005 CanLII 8664 (ON CA), 74 O.R. (3d) 721 (C.A.), at para. 21. R. v. S.K., 2014 ONCA 138, at para. 4.