R. v. Stacey, 2012 NLCA 22

Date: 20120404 Docket: 11/48 Citation: R. v. Stacey , 2012 NLCA 22 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : ROBERT MERVIN STACEY APPELLANT AND : HER MAJESTY THE QUEEN FIRST RESPONDENT AND : THE HONOURABLE JUDGE R. J. WHIFFEN SECOND RESPONDENT Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 201003G0141 Appeal Heard: April 4, 2012 Judgment Rendered: April 4, 2012 (Orally) Memorandum of Disposition Filed: April 5, 2012 Counsel for the Appellant: Gerald F. O’Brien Q.C. Counsel for the First Respondent: Vikas Khaladkar Counsel for the Second Respondent: No One Appearing

Welsh J.A.: [1] Mr. Stacey is charged with two counts of sexual assault contrary to

section 271 of the Criminal Code. The first offence isalleged to have taken place in October 2005. The second offence, involving a different complainant, is alleged to have taken place inJuly 2006. Mr. Stacey is also charged with one count of attempting to obstruct the course of justice by attempting to influence a witness,that is, the second complainant, contrary to section 139(2) of the Criminal Code. Finally, Mr. Stacey is charged with failing to complywith a condition in an undertaking to have no contact, directly or indirectly, with the second complainant, contrary to

section 145 of theCriminal Code. [2] In June 2007, Mr. Stacey pleaded not guilty to all charges. A preliminary inquiry was not held until June 2010. At that time,Mr. Stacey was committed to stand trial on the four charges. Mr. Stacey sought judicial review of that decision by way of certioraripursuant to

section 784 of the Criminal Code. That application was heard in the Trial Division in January 2011, and a decision affirmingthe preliminary inquiry judge’s committal was rendered in April 2011 (2011 NLTD(G) 56). That decision was appealed to this Courtand, at the hearing, the appeal was dismissed. [3]

Section 548 of the Criminal Code specifies when a preliminary inquiry judge shall commit an accused for trial: When all the evidence has been heard by the justice, he shall, (

a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged, …, order the accused to stand trial; … [4] This provision was considered in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. McLachlin C.J.C., for the Court,explained that, where there is circumstantial evidence, the preliminary inquiry judge is required to “engage in a limited weighing of thewhole of the evidence” to ascertain whether a “reasonable jury properly instructed could return a verdict of guilty” (paragraph 29).

TheChief Justice summarized: [30] In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does sheassess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for aproperly instructed jury to infer guilt. Thus, the task of “limited weighing” never requires consideration of the inherent reliability of theevidence itself.

It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from thecircumstantial evidence. [Underlining in original.] [5] The preliminary inquiry judge heard a substantial amount of evidence from the complainants. Those witnesses gaveevidence, sufficient for purposes of the preliminary inquiry, that the sexual activity took place and that the touching was intended. Thefocus of the appeal relates to the complainants’ consent to the sexual activity.

The question of consent involves an assessment of thecredibility of witnesses, a matter properly determined at trial provided there is some evidence as to lack of consent at the preliminaryinquiry.

With this in mind, after reviewing the evidence, the preliminary inquiry judge concluded that there is evidence that could be putto a jury and, if believed, could result in convictions on the sexual assault charges. [6] Regarding the charge of attempting to influence a witness and the related offence of failing to comply with an undertaking,the preliminary inquiry judge heard evidence from the second complainant and her friend who had acted as an intermediary between Mr.Stacey and the complainant.

Again, the judge was satisfied that there was evidence which, if believed by a jury, could result in aconviction. [7] In reviewing those decisions by way of certiorari, the test to be applied is set out in R. v. Russell, 2001 SCC 53, [2001] 2S.C.R. 804.

McLachlin C.J.C., for the Court, concluded: [48] As we discussed in Skogman [ (SCC), [1984] 2 S.C.R. 93], a preliminary inquiry judge’s determination ofsufficiency is entitled to the greatest deference; only if there is no evidence on an element of the offence, …, can a reviewing courtvacate the committal: see Skogman, at pp. 100 and 106. … [8] The judge hearing the certiorari application correctly applied that test. He concluded that there was no basis on which tointerfere with the preliminary inquiry judge’s determination that there was some evidence on which to ground each essential element ofthe charges.

The committal to stand trial was, therefore, affirmed. [9] This Court dismissed the appeal having concluded that the applications judge did not err in dismissing the certiorariapplication. Given the significant passage of time since the charges were laid and the committal for trial made, the matter shouldproceed to trial without delay. ______________________________ B. G. Welsh J.A.