R. v. Eckstein (S.M.), 2012 MBCA 96

Citation: R. v. Eckstein (S.M.), 2012 MBCA 96 Date: 20121018 Docket: AR 11-30-07570 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier Mr. Justice Alan D. MacInnes BETWEEN: ) M. D. GlazerHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) C. A. Vanderhooft ) for the Respondent- and - ) ) ) Appeal heard:SUZANNE MAUREEN ECKSTEIN ) June 7, 2012 ) (Accused) Appellant ) Judgment delivered: ) October 18, 2012 CHARTIER J.A.

Introduction and Issues 1 The accused brought a motion for judicial review, seeking an order in the nature of certiorari in the Court of Queen’sBench before Joyal C.J.Q.B. (the reviewing judge) to quash the committal decision of the preliminary inquiry judge.

In clear andcomprehensive reasons, the reviewing judge dismissed the motion. 2 The accused appeals, arguing that the reviewing judge erred in law by finding that there was some evidence for eachessential element of the four charges and that he also erred in law by finding that there was some evidence of the accused’s identity. 3 For reasons which will become apparent, there is no need for me to detail the facts to any great degree. A fireoccurred in the house of the accused’s fiancé. In addition to the fiancé, the accused and two of the fiancé’s nephews, Calvin andKenneth, resided in that home.

It is alleged that Kenneth purposely set the fire. He died in the fire. It is also alleged that the accusedarranged for Kenneth to burn the house down for insurance proceeds. The evidence against the accused is circumstantial in nature. 4 Following a preliminary inquiry, the accused was committed to stand trial on charges of manslaughter, arson,conspiracy and arson for a fraudulent purpose. Standard of Review 5 There is some disagreement as to the standard by which this court should review the decision of the reviewing judgewho reviewed the committal decision.

The accused submits that the standard of review should be correctness. The Crown says it ishighly deferential. As the jurisprudence in this area is sparse, it would be fitting to address it more fully. 6 The accused first calls attention to the fact that the committal test following a preliminary inquiry is the same test asthe one used on a directed verdict motion following the close of the Crown’s case at trial. She is correct on that point. That test,commonly known as the Shephard test (see United States of America v.

Shephard, (SCC), [1977] 2 S.C.R. 1067), requiresa judge to determine whether there is any admissible evidence (direct or circumstantial) “upon which a reasonable jury properlyinstructed could return a verdict of guilty” (at p. 1080). If there is, the judge must commit the accused to stand trial (if at the preliminaryinquiry stage), or dismiss the accused’s directed verdict motion (if at trial). 7 The accused also points out that the standard to be applied on appellate review of a judge’s directed verdict motiondecision is correctness (see R. v. Barros, 2011 SCC 51 at para. 48, [2011] 3 S.C.R. 368).

Again, she is correct. The accused now argues

that the standard by which this court should review the committal decision should be the same as the one applied on a directed verdictmotion decision; that is, correctness.

The accused contends that, if this court reaches a different conclusion than that of the reviewingjudge (as to whether there is any evidence for the preliminary inquiry judge to commit), then no deference is owed and appellateintervention is warranted. 8 The accused’s argument, while seemingly attractive at first blush, is not sound for two reasons. 9 First, while a directed verdict motion decision is reviewable by way of appeal, there is no right of appeal from a s.548(1) Criminal Code (the Code) committal decision (see R. v. Sazant, 2004 SCC 77 at para. 46, [2004] 3 S.C.R. 635).

The only way toreview a committal decision is by judicial review on a motion for certiorari by a Court of Queen’s Bench and that is a limited review. Unlike an appeal, where the court can review for errors of law or fact or both, a reviewing judge on certiorari is only allowed to reviewthe committal decision for jurisdictional error, not any other type of error. For instance, there is jurisdictional error when a preliminaryinquiry judge commits an accused to stand trial when there is no evidence on an essential element of an offence charged. As stated bythe Supreme Court of Canada in R. v.

Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, while a preliminary inquiry judge’s committal isreviewable on certiorari, it “is very limited” and the decision to commit will only be quashed where the preliminary inquiry judge actedwithout jurisdiction or committed due process errors (at para. 19): .... Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because thattribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached.

Rathercertiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has actedin breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, [ (SCC), [1984] 2 S.C.R. 93], at p. 100 (citing Forsythe v.

The Queen, (SCC), [1980] 2 S.C.R. 268). 10 Despite the fact that the test on committal is identical to the directed verdict motion test, the Supreme Court of Canadain Russell held that the standard of review to be applied by the reviewing judge to the preliminary inquiry judge’s decision to commit is ahighly deferential standard. McLachlin C.J.C. wrote that the decision of the preliminary inquiry judge “is entitled to the greatestdeference; only if there is no evidence on an [essential] element of the offence … can a reviewing court vacate the committal” (at para.48).

In the context of a judicial review on certiorari of a committal decision, “greatest deference” means that there may be more thanone view of the evidence and, as long as that view falls within a range of reasonableness, interference would be unwarranted. The “no”in “no evidence” is better understood by its antonym: “some” or “any” evidence. “Some” or “any” evidence means that “there need onlybe a scintilla of evidence” on each essential element of each offence for the committal to be valid (see R. v. Hickey, 2007 ONCA 845 atpara. 5 ).

Suffice it to say that the combination of a very high level of deference with a very low evidentiary threshold meansthat interference will be very rare. 11 This highly deferential standard is in stark contrast to the correctness standard applicable on an appeal of a directedverdict motion decision. The reason for this extremely narrow scope of review of a committal decision is that, at the preliminary inquirystage, unlike at the trial stage, the Crown need only lead a prima facie case; it does not have to call all the evidence it plans to lead attrial (see Russell at para. 20 and R. v.

Hynes, 2001 SCC 82 at para. 33, [2001] 3 S.C.R. 623). Thus, the Crown’s entire case may well notbe before the judge when he/she applies the Shephard test at a preliminary inquiry. 12 The second reason why the accused’s argument (that the applicable standard is correctness) cannot be accepted is thatthe matter at hand is commonly referred to as a “second-level appeal” or second-level review. This court is being asked to review thedecision of the reviewing judge who reviewed the decision of the preliminary inquiry judge.

There has already been one review: thereviewing judge’s review on certiorari of the preliminary inquiry judge’s committal decision. On second-level appeals, we review thedecision of the first-level review (the reviewing judge), not the decision in the first instance (in this case the preliminary inquiry judge). 13 While mindful that we are in a criminal law setting, the principles set out in Dr. Q v. College of Physicians andSurgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, are, in my view, applicable.

These principles have been applied byappellate courts on second-level appeals in the following criminal cases: R. v. Shiers (J.G.), 2003 NSCA 138 at para. 10, 219 N.S.R. (2d)196, and R. v. Creelman (P.K.), 2007 NSCA 51 at para. 8, 254 N.S.R. (2d) 155. This means this court will examine the decision of thereviewing judge to determine, first, whether the correct standard of review was selected and, second, whether it was correctly applied. These two determinations will be reviewed by this court on the correctness standard and if error occurs here, no deference is owed.

However, if the reviewing judge selects the correct standard of review and correctly applies it, the same high level of deference whichwas owed to the preliminary inquiry judge’s committal decision by the reviewing judge is owed to the reviewing judge’s decision by thiscourt. 14 Determining whether the correct standard was selected will be easily ascertainable. Determining whether the reviewingjudge incorrectly applied the correct standard entails reviewing the decision to ensure that it was not arrived at on an erroneous basis.

For example, if the reviewing judge correctly selects a deferential standard, but then fails to show the appropriate level of deference,second-level appeal intervention would be justified. This court would then stand in the shoes of the reviewing judge and assess thepreliminary inquiry judge’s decision to commit in light of the correct standard of review. 15 I am aware of two decisions from the British Columbia Court of Appeal (R. v. Howells, 2009 BCCA 460 (QL), and R.v. Rao (J.), 2012 BCCA 275, 323 B.C.A.C. 165) that rely, directly or indirectly, on a third (Canada (Attorney General) v.

Trueman,P.C.J. et al. (1996), (BC CA), 83 B.C.A.C. 227) for the proposition that the standard of review on an appeal from anorder in the nature of certiorari is correctness. In the Trueman case, a Provincial Court judge dismissed a case against the accused forwant of prosecution. The Crown moved for an order in the nature of certiorari to set aside the Provincial Court judge’s order. TheSupreme Court judge dismissed the motion on the basis that the Crown should have exercised its right of appeal under s. 830 of theCode, rather than seek a remedy through a prerogative writ.

On appeal, the British Columbia Court of Appeal noted that while s. 830

allows for appeals against convictions and acquittals, it does not provide a right of appeal against a dismissal for want of prosecution. Asthis was a clear legal error, reviewable on correctness, it allowed the appeal. 16 The Trueman case is easily distinguishable. Unlike the case at bar, the reviewing judge in the Trueman case declinedto review on certiorari on the basis of an erroneous

interpretation of the law. There can be no doubt that in such cases the standard ofreview is correctness. In the instant case, the reviewing judge did consider the matter on its merits and, in the absence of legal error,great deference is owed to his decision. Analysis 17 In the case at bar, it is clear that the reviewing judge selected the correct standard to review the preliminary inquiryjudge’s decision on committal when he chose the deferential standard set out in Russell.

To determine whether the reviewing judgecorrectly applied that standard, it is good to be reminded that it is a highly deferential one which allows the reviewing judge to vacate thecommittal “only if there is no evidence on an [essential] element” of any offence. If there was any or some or “only … a scintilla ofevidence,” the reviewing judge was correct not to intervene. 18 A few points need to be made on certain distinctive evidentiary features which exist at the preliminary inquiry stage. At this stage, if the Crown’s evidence is capable of belief, it is to be believed.

The preliminary inquiry judge is not to assess credibilityor generally weigh the evidence, nor is the judge allowed to draw inferences from the circumstantial evidence. Rather, that judge is toassess the reasonableness of the Crown’s suggested inferences. This requires a “limited weighing” of the whole of the Crown’s evidence(see R. v. Arcuri, 2001 SCC 54 at paras. 29-30, [2001] 2 S.C.R. 828). While the accused may disagree with those inferences or preferother inferences, such differences of opinion are not proper considerations at this stage of the proceedings.

Finally, when conducting thisassessment, the preliminary inquiry judge must bear in mind that “where more than one inference can be drawn from the evidence, onlythe inferences that favour the Crown are to be considered” (Sazant at para. 18). 19 The two issues raised by the accused in the instant case are whether the reviewing judge erred by finding, first, thatthere was some evidence for each essential element of the four charges and, second, that there was some evidence of the accused’sidentity. 20 I would not accede to the first ground of appeal. 21 The issue turns on whether there is, on each essential element of each offence, some admissible evidence capable ofbelief which, if believed, could reasonably support the Crown’s suggested inference.

This is not a difficult threshold to meet. 22 The accused has attempted to explain why it would be unreasonable to draw an inference. In doing so, he has isolatedeach piece of circumstantial evidence without regard to the rest of the evidence. Engaging in such a piecemeal analysis is not theappropriate way to consider circumstantial evidence.

That evidence must be taken as a whole and its cumulative effect is to beconsidered when making the assessment on the reasonableness of any inferences to be drawn. 23 From the reviewing judge’s decision, it is clear that he correctly applied the appropriate standard when he conductedhis review of the decision of the preliminary inquiry judge. It also shows that he examined the totality of the evidence adduced to assessthe reasonableness of any inferences to be drawn with respect to each essential element of the four counts.

As was recently stated in R. v.Hawley, 2012 ONCA 528 (at para. 10): .… … [I]f the inferences urged by the Crown are within the field of inferences that could reasonably be drawn, the preliminary inquiryjudge must commit for trial even if those are not the inferences that the preliminary inquiry judge would draw. 24 In the instant case, the reviewing judge could only intervene if the preliminary inquiry judge committed jurisdictionalerror; such as, that there is no evidence on an essential element of any offence.

In my view, the reviewing judge correctly concludedthat, as the inferences suggested by the Crown fell within a range of reasonableness, the preliminary inquiry judge made no jurisdictionalerror by committing the accused to stand trial. As already stated, while the accused may disagree with those inferences or prefer otherinferences, such differences of opinion are not proper considerations at this stage of the proceedings. In the result, I have not beenpersuaded that the reviewing judge erred in any way. 25 I now turn to the second ground of appeal.

Counsel for the accused argues that the reviewing judge erred by findingthat there was some evidence of identity. He submits that there was no evidence of the accused’s identity because none of the Crown’switnesses directly identified the accused by pointing her out in court. 26 At the beginning of any preliminary inquiry or trial, the judge will invariably ask whether the accused is present incourt and ready to proceed. If not present, the judge will seek an explanation and consider whether to issue a warrant.

If the person ispresent, it means that the person referred to in the information or indictment as the accused is before the court. The fact that the accusedis present means nothing else. The Crown must still satisfy the court that the person standing charged and in attendance committed theoffence. 27 Like any other essential element, the identity element need not be proven by direct evidence. It can be proven bycircumstantial evidence.

In this case, as the matter was simply at the committal stage and as this is a circumstantial evidence case, thereneeded only to be some admissible evidence upon which the preliminary inquiry judge could reasonably infer that it was the accusedwho committed the offences. 28 This court recently had occasion to consider the issue of the sufficiency of evidence in relation to the identity of the

accused in the context of a directed verdict motion in R. v. O’Kane; R. v. Zebrun, 2012 MBCA 82. As the test on a directed verdictmotion is the same for committal, the principles set out in O’Kane and Zebrun have applicability here. In that case, the two accusedwere police officers.

The circumstantial evidence before the court included the similarity of the names of the accused to evidencetendered by consent, as well as the evidence of a witness who said one of the accused identified himself as Officer O’Kane and that hereceived a police officer business card with the names of Officer Zebrun and Officer O’Kane on it.

Hamilton J.A. wrote (at paras. 47-50): In my view, the fundamental question here is whether the similarity of names between the accused and the officers referred to in theevidence was sufficient to fulfill the identification component of the test to be applied on the directed-verdict motions. The case law is clear that similarity of names may serve as circumstantial evidence of identity, particularly at the directed-verdict stage. Similarity of names “is an item of proof of identity” (Nicholson [R. v. Nicholson (1984), 1984 ABCA 88 , 52 A.R. 132 (C.A.),leave to appeal to S.C.C. denied, [1984] S.C.C.A.

No. 176 (QL)] at para. 33). See also McWilliams’ [The Honourable Mr. Justice S.Casey Hill, David M. Tanovich & Louis P. Strezos, eds., McWilliams’ Canadian Criminal Evidence, 4th ed., looseleaf (Aurora: Thomson Reuters Canada Limited, 2010) vol. 2] (at para. 29:40.20.90): Name It has been held that some evidence of identity is provided simply by a similarity of name and address. …. The point to remember is thatsome evidence is all that is needed to commit for trial or to resist a motion for non-suit. The seminal case in Canada regarding similarity of name as identification evidence is R. v.

Chandra (1975), (BCCA), 29 C.C.C. (2d) 570 (B.C.C.A.). Chandra was a directed verdict case where the jury was directed to acquit based on a lack ofidentification evidence. The accused was alleged to have run over an elderly woman with his car as she was crossing the street. TheCourt of Appeal concluded that there was some admissible evidence of identification and, therefore, allowed the appeal and directed anew trial.

McIntyre J.A. (as he then was), for the court, made the following remarks regarding similarity of name as identificationevidence (at p. 573): In my opinion mere identity of name affords some evidence of identity of a person. When accompanied by other factors such as therelative distinctiveness of the name, or the fact that it is coupled with an address, or appears upon a licence or other document ofsignificance, its weight is strengthened. The trier of fact when such evidence is before it, whether Judge alone or jury, must consider it,weigh it and reach its determination.

When such evidence is adduced to the trier of fact it cannot be said there is no evidence. …. In R. v. D.R.H., 2007 MBCA 136, 220 Man.R. (2d) 271, which was a conviction appeal relating to a sexual assault, Scott C.J.M., writingfor the majority, cited Chandra and concluded that “the fact the accused and the perpetrator share the same name may be used ascircumstantial evidence of identity” (at para. 46). See also R. v. Zarubin (G.A.), 2004 SKCA 14, 241 Sask.R. 292, R. v. J.V.-R. (1999), (ON CA), 120 O.A.C. 298, and R. v.

D.B., 2007 ONCA 368 (QL). [emphasis added] 29 Regarding the case at hand, the reviewing judge first reviewed the evidence and found that there was some evidence oneach of the essential elements for each offence to prove that “Susan Eckstein” or “Sue Eckstein” committed the offences.

The issueraised by the accused was that, as there had been no dock or in-court identification, there was no evidence that the person who presentedherself in court in answer to the information naming the accused as “Suzanne Maureen Eckstein” was the same person referred to by thewitnesses as the perpetrator who committed the offences. 30 The reviewing judge disagreed. He was “mindful that a person who identified herself as Susan Eckstein presentedherself (through counsel) in court at the start of the preliminary inquiry in answer to the charges” (at para. 74).

He held that thefollowing evidence could reasonably support the Crown’s suggested inference that the person who came forward to answer the chargeswas “the person involved in the offences alleged, either as a principal or party” (at para. 75): 1) that a number of persons who testified at the hearing mentioned the name “Susan Eckstein” in their testimony; 2) that a number of those witnesses were persons who clearly knew her; and 3) that Calvin (her fiancé’s nephew) testified that he recognized “Sue Eckstein” in the courtroom. 31 In my view, there is no merit to the accused’s argument.

As mentioned above, there need only be some evidence toground identification at the preliminary inquiry stage. The name “Susan Eckstein” was mentioned a number of times during the

proceedings by people who clearly knew her as the person accused of the offences. Moreover, her fiancé’s nephew, who also knew her, testified that “Sue Eckstein” was present in the courtroom.

As the reviewing judge pointed out, those witnesses were never “ challenged respecting their purported relationship with or knowledge of the accused, Susan Eckstein, when reference was made to her by them” (at para. 74). 32 In the end, there was some evidence that the perpetrator of the offences was “ Susan Eckstein” or “Sue Eckstein.” While those names are not identical to “Suzanne Maureen Eckstein” (the name on the information), they are very similar. As was stated in Russell , “ only if there is no evidence on an element of the offence … can a reviewing court vacate the committal” (at para. 48).

As the accused and the perpetrator share similar names and, as similarity of names may serve as circumstantial evidence of identity, there was some admissible evidence capable of belief which, if believed, could reasonably support an inference that it was the accused who committed the offences. 33 In the result, I am of the view that the reviewing judge correctly applied the appropriate standard of review. As such, his decision is owed great deference. I would therefore not interfere with his decision to dismiss the certiorari motion. Conclusion 34 I would dismiss the appeal. J.A. I agree: J.A. I agree: J.A.