R. v. Grewal, 2010 ABQB 748

Court of Queen ’ s Bench of Alberta Citation: R. v. Grewal, 2010 ABQB 748 Date: 20101126 Docket: 090479452Q1 Registry: Edmonton Between: Her Majesty the Queen Crown (Respondent) - and - Gurpreet Singh Grewal Accused (Applicant) Restriction on Publication: By Court order, the evidence taken at the preliminary inquiry may not be published, broadcast, or transmitted in any manner. The ban continues until the accused is discharged after the inquiry, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 539.

Editorial Notice: The interim publication ban ended on April 23, 2012. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.M. Ross

_______________________________________________________ 1. Introduction [ 1 ] On April 21, 2009, Mr. Gurpreet Grewal [the “Applicant”] was a passenger in a rented vehicle which was searched by members of the Royal Canadian Mounted Police following a traffic stop. The search ultimately located 11 kg. of methamphetamine concealed inside the vehicle. Mr.

Grewal and the driver of the vehicle, Brinder Khangura, were charged with possession of illegal substances for the purpose of trafficking ( Controlled Drugs and Substances Act , S.C. 1996, c. 19, s. 5(2)). [ 2 ] The Crown elected to proceed on this charge by indictment. A preliminary inquiry was held on May 3-4, 2010 before Fraser P.C.J. who committed both Mr. Grewal and Mr. Khangura to trial in the Court of Queen’s Bench.

In his oral decision, Judge Fraser concluded the Crown had presented sufficient evidence that a properly instructed jury could infer knowledge and control of the methamphetamine by both Accused. Judge Fraser reviewed the relevant elements of the Crown’s case, including certain features of the stopped rental vehicle and its contents (cell phones, a laptop computer, unusually positioned air freshener, marijuana residue and drug paraphernalia, and minimal luggage) which matched an explanation by Constable Irani of characteristic practices for ‘drug mules’ who transport large amounts of illegal narcotics.

Further, the judge disbelieved an explanation that the Accused were travelling to West Edmonton Mall to shop, noting neither had credit cards or wallets in their possession. [ 3 ] Mr. Grewal has applied to this Court for review in certiorari of Judge Fraser’s decision to commit him to trial, and in particular that the preliminary inquiry judge committed Mr. Grewal to trial solely on the basis of inadmissible circumstantial evidence. 2.

Position of the Parties [ 4 ] The parties agree on the standard for certiorari review of a preliminary inquiry, a court which reviews the result of a preliminary inquiry may only intrude where the preliminary inquiry judge has exceeded his or her jurisdiction: R. v. Skogman , 1984 CanLII 22 (SCC) , [1984] 2 S.C.R. 93, 11 D.L.R. (4th) 161; R v. Dubois , 1986 CanLII 60 (SCC) , [1986] 1 S.C.R. 366, 26 D.L.R. (4th) 481; R. v. Sazant , 2004 SCC 77 at para. 14 , [2004] 3 S.C.R. 635; R. v.

Deschamplain , 2004 SCC 76 at para. 12 , [2004] 3 S.C.R. 601. [ 5 ] Counsel for the Applicant identifies three allegedly problematic components of the reasoning and analysis of the preliminary inquiry judge: 1. the preliminary inquiry judge applied an incorrect test for committal of the Applicant on the charge before the Court and failed to assess whether the circumstantial evidence could reasonably support an inference of guilt; 2. the preliminary inquiry judge relied on statements that the Accused were going to visit West Edmonton Mall, where the only evidence of this was in statements made by Mr.

Khangura, which were not admissible against the Applicant; and 3. the evidence from the stopped vehicle and its occupants was an inadequate basis for the preliminary inquiry judge to infer that Mr. Grewal was one of a pair of ‘drug mules’. [ 6 ] The Applicant’s argument is that any of these defects amount to an error in jurisdiction. [ 7 ] The Respondent acknowledges the case against Mr. Grewal is circumstantial, but argues that a preliminary inquiry judge may engage in a limited weighing of that evidence and draw any reasonable inferences from that circumstantial evidence: R. v.

Arcuri , 2001 SCC 54 at para. 30 , 203 D.L.R. (4th) 20. Here, that inference would be that the circumstances in which the drugs were located

provide an inference that both persons in the vehicle had joint possession of the methamphetamine, which is a question of fact: R. v. T.A.V. , 2001 ABCA 316 at paras. 38-39 , 299 A.R. 96. 3. Law and Analysis [ 8 ] The jurisdiction of a Preliminary Inquiry judge is defined by Criminal Code , R.S.C. 1985, c. C-46, s. 548: 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. [ 9 ] “Sufficient” evidence is evidence which could, if believed, result in a conviction: United States of America v. Shephard , 1976 CanLII 8 (SCC) , [1977] 2 S.C.R. 1067, 70 D.L.R. (3d) 136. This does not involve an assessment by the judge as to whether evidence should be believed; if there is direct evidence as to every element of the offence charged, the judge must commit: R. v.

Arcuri , at para. 22 . However, where the evidence is circumstantial, the Preliminary Inquiry judge must engage in a limited weighing of the evidence, “ in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw ” : R. v. Arcuri , at para. 23 . [ 10 ] Canadian jurisprudence on certiorari review of preliminary inquiry decisions has identified examples where a preliminary inquiry judge has exceeded his or her jurisdiction: 1. where relevant evidence was not considered: R. v. Deschamplain , at paras. 38-39 , R. v.

Sazant , at para. 25 ; 2. where the preliminary inquiry judge applied a legally incorrect definition of an offense: R. v. Sazant , at para. 25 ; 3. where the preliminary inquiry judge did not consider evidence of witnesses called by the accused: R. v. Arcuri , at para. 34; 4. where evidence was weighed on the at-trial standard of reasonable doubt: R v. Dubois , at p. 380, and 5. w here there is no evidence of an essential element of an offence: R. v.

Skogman . [ 11 ] Case law also identifies examples of defects in a preliminary inquiry which do not mean a preliminary inquiry judge exceeded his or her jurisdiction. A particularly relevant example is found in the majority judgment of R. v.

Deschamplain , where Justice Major at para. 17 indicated that a decision to admit or exclude evidence or otherwise apply the rules of evidence is a question of law and thus is not subject to review by certiorari : 17 The respondent questions why the failure of a preliminary hearing judge to consider evidence tendered by the Crown amounts to jurisdictional error, but the erroneous exclusion of evidence at the preliminary hearing does not. The answer is not elusive. The preliminary inquiry judge has jurisdiction to conduct the inquiry according to the rules of evidence.

Any error with respect to the application of those rules that does not rise to the level of a denial of natural justice (which also goes to jurisdiction: see Dubois, supra, at p. 377; Forsythe, supra, at p. 272) constitutes an error of law, not a jurisdictional error . Errors of law are not reviewable by way of

certiorari. [Emphasis added.] [ 12 ] The Applicant’s first argument is that the preliminary inquiry judge applied the incorrect test for committal. It is argued that rather than engaging in a limited weighing of the circumstantial evidence to assess whether that evidence was reasonably capable of supporting an inference of guilt, the judge applied “a standard that could best be described as ‘a potential Crown theory’ (two mules) test”. The Applicant further argues that, had the preliminary inquiry judge applied R. v. Arcuri , he would necessarily have discharged the Applicant.

This is the subject of the third ground for the application, which will be addressed below. [ 13 ] There is no merit to the argument that the preliminary inquiry judge applied the incorrect test. While he referred to a potential Crown theory, this was not the test he applied in deciding to commit the Applicant to trial.

His decision to commit was based on his conclusion that: “[d]epending on their view of the circumstantial evidence, a jury properly instructed could infer both knowledge and control and therefore could return a verdict of guilty”. [ 14 ] The Applicant’s second argument is based on the preliminary inquiry judge’s reliance on statements of the co-accused. It is argued that there was no evidence that the Applicant accepted these statements, and they are therefore inadmissible against him. [ 15 ] The Applicant cites Alan D.

Gold, The Practitioner ’s Criminal Code 2011 (Markham: LexisNexis, 2010 ) at p. 803 for the proposition that: . . . if the judge relies on inadmissible evidence, which is in fact the only evidence on an issue necessary for committal, then there is an absence of admissible evidence on a requisite element, which is in fact a jurisdictional issue. [ 16 ] This proposition is stated in the context of the “general rule ... that decisions concerning the admissibility of evidence, even if erroneous, do not constitute reviewable jurisdictional error”.

The only exception is where “the improperly admitted evidence is the only evidence of an essential element of the offence” [emphasis added]. [ 17 ] Thus, an erroneous ruling regarding admissibility of “the only evidence on an issue” is a jurisdictional error, which could be described as ‘transforming’ a question of law into a question of jurisdiction. [ 18 ] Mr. Khangura’s statements cannot be characterized as the only evidence of an essential element of the offence.

Judge Fraser reviewed other evidence from which he concluded a properly instructed jury could infer knowledge and control of the methamphetamine by both accused. In R. v. Waite (1991), 113 A.R. 318, 12 W.C.B. (2d) 312 (Alta. C.A.) , the Court explained that no jurisdictional error arises where support for an essential element can instead flow from alternative evidence for which admissibility is not an issue: In our view, certiorari lies against a committal order only for jurisdictional error.

In the ordinary course, that error only arises when a judge commits notwithstanding the absence of a "scintilla", of evidence on an element of the offence. See Skopan (1985) 1984 CanLII 22 (SCC) , 13 C.C.C. (3d) 161 (S.C.C.). It is correctly said for the accused that the committing judge is bound by the rules of evidence, including those about admissibility. See Re StiIIo (1981) 1981 CanLII 3313 (ON CA) , 60 C.C.C. (2d) 243 (Ont C.A.). But it is possible that evidence sufficient for committal might be before the judge quite apart from evidence the admissibility of which is in dispute.

In such a case, an error about the admissibility of that evidence is not a jurisdictional error . That is this case put at its highest. ... [Emphasis added.] [ 19 ] Following that analysis, any error by Judge Fraser in relying on the statements was an error of law only, not a jurisdictional error. [ 20 ] I note, however, that other courts have subsequently evaluated and rejected the concept that a question of law is ‘transformed’ into a question of jurisdiction by erroneous admission of all evidence for a necessary element of a charge. Justice Schuler in R. v. Auger , 2001 NWTSC 30 at paras. 27-28 states:

27 To hold that an error in the admissibility of evidence does become jurisdictional error where the evidence in question is the only evidence against the accused would, I think, be tantamount to expanding supervisory remedies in a way that was disapproved of in Dubois (at p. 227): However, the reason underlying the court's restriction of supervisory remedies is equally valid in both cases [of committal and discharge].

It has been said numerous times that the objective of holding a preliminary inquiry is merely to determine whether there is enough evidence against the accused to justify ordering him to stand trial. It is not intended to determine, finally or otherwise, the accused's guilt or innocence. Therefore, it is inappropriate to allow the expansion of supervisory remedies designed to correct errors of law made in the course of preliminary inquiries which relate, for example, to the admission of evidence, the questioning of witnesses, or the production of documents.

A preliminary hearing "is not a trial and should not be allowed to become a trial" ... . The questioning of errors of law is therefore as inappropriate in proceedings to quash a discharge as it is in proceedings to quash a committal . Errors which go to the preliminary hearing judges's jurisdiction are, however, different. Superior courts, from the earliest days in our law, have exercised their inherent authority to enforce compliance with the law by lower tribunals which must exercise fully without exceeding their statutory jurisdiction.

Such is the position of a preliminary hearing tribunal. 28 Accordingly, I conclude that even if the preliminary inquiry Judge did err in admitting the complainant's prior statements for substantive use, it was an error within the exercise of his jurisdiction and not one that caused him to lose jurisdiction . ... [Emphasis added.] [ 21 ] Justice Schuler concludes R. v. Waite should not be interpreted to support the ‘transformation’ principle. [ 22 ] This reasoning was recently adopted by the New Brunswick Court of Appeal in R. v. Gallant; R. v.

LeBlanc , 2009 NBCA 84 at paras. 43-51 , 352 N.B.R. (2d) 333: 48 Schuler J. reviewed other decisions that were said to stand for the proposition that "if the result of an error as to admissibility of evidence is that there is 'no evidence', then the preliminary inquiry judge loses jurisdiction if he or she commits for trial on that evidence" (para. 22) and found that that there was no real authority for such a proposition.

I agree with her . ... 49 From my review of the cases cited to us, it is apparent that where failure to comply with a mandatory statutory provision resulted in a preliminary inquiry justice losing jurisdiction, the provisions in issue were procedurally relevant to the justice's ultimate determination. None of the decisions involved an evidentiary ruling . ... [Emphasis added.] [ 23 ] The R. v. Auger and R. v. Gallant line of reasoning has subsequently been followed in R. v.

Lacelle , 2010 ONSC 5374 at para. 14 . [ 24 ] The Applicant’s third argument is that the evidence from the stopped vehicle and its occupants was an inadequate basis for the preliminary inquiry judge to infer that Mr. Grewal was one of a pair of ‘drug mules’. [ 25 ] The preliminary inquiry judge referred to “the evidence of Sergeant Topham and Constable Lee and the opinions of Constable Irani” as supporting a Crown theory regarding “two mules”.

Constable Irani was qualified to give opinion evidence about “the drug itself, quantity, price, manner of use, packaging, distribution mode,” but not about “habits of users and sellers”. He testified as to features of the rental vehicle and its contents that were consistent with its use for distribution. Constable Irani also testified, following an objection by the Applicant’s counsel that was overruled by the preliminary inquiry judge, that a “trustworthy person” would be required to move the product.

However, the preliminary inquiry judge declined to allow an opinion as to a whether there was a custom of using more than one person as a distributor of methamphetamine. [ 26 ] The Applicant argues that the opinions of Constable Irani do not connect the Applicant to the alleged offence. [ 27 ] If the preliminary inquiry judge made an error in admitting or relying on any of Constable Irani’s opinion evidence, that

would be an error of law only. The evidence including Constable Irani’s admitted opinions could support an inference of knowledge and control of the methamphetamine by both accused. [ 28 ] The parties focussed a significant portion of their arguments on whether joint possession by Mr. Grewal and the driver had been established. In my opinion, that question is irrelevant. The recent decision of Justice Hillier, R. v.

Aw , 2007 ABQB 421 emphasizes that for a preliminary inquiry persons may be committed to trial where one of a number of different but reasonable inferences may be drawn from a set of facts. [ 29 ] R. v. Aw involved review of a preliminary inquiry committal to trial where circumstantial evidence formed the basis for a number of drug-related charges. Drugs were located in a house with a number of residents, all of whom denied knowledge of the drugs.

Justice Hillier concluded the appropriate test for reasoning by inference is that an accused may be committed to trial where the accused is incriminated by an “ available inference ” that can derived from the evidence. In that case, since someone must have had possession and control of the drugs found on the premises, but all denied the drugs belonged to them, someone was lying.

The preliminary inquiry judge could reasonably infer that the accused was the liar. [ 30 ] Similarly, in the present scenario, an inference may be drawn that the drugs in the rented vehicle were in the possession of one (or both) of the occupants. The driver may be committed to trial on an inference that he was the person in possession of the drugs. Similarly, Mr. Grewal could be committed on an alternative inference that the methamphetamine was in his control. Either alternative inference is valid when considering both of the vehicle’s occupants.

Judge Fraser would not have exceeded his jurisdiction by reasoning in that manner. 4. Conclusion [ 31 ] I confirm Fraser P.C.J.’s order of May 5, 2010. Mr. Grewal is committed to stand trial in the Court of Queen’s Bench for possession of illegal substances for the purpose of trafficking. Heard on the 19 th day of October, 2010. Dated at the City of Edmonton, Alberta this 26 th day of November, 2010. J.M. Ross J.C.Q.B.A. Appearances: Craig A. Kallal Attorney General of Canada for the Crown (Respondent)

Brian A. Beresh, Q.C. Beresh Cunningham Aloneissi O’Neil Hurley for the Accused (Applicant)