) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 578

CITATION : R. v. Prempeh, 2017 ONSC 578 COURT FILE NO.: 1839/16 DATE: 20170203 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – JERMAINE PREMPEH Applicant ) ) ) ) ) ) ) ) ) G. Hendry, for the Crown B. Goldman, for the Applicant ) ) ) HEARD: January 13, 2012 REASONS FOR JUDGMENT Information Contained Herein is Prohibited from Publication by the Order of The Honourable Justice P. Currie dated August 22, 2016 FRAGOMENI, J [ 1 ] The Applicant brings an Application for Certiorari following his committal by The Honourable Justice P.

Currie dated August 29, 2016 on the charges of Attempt Murder and two counts of Transferring a Firearm. [ 2 ] The Applicant submits that the preliminary hearing Justice made a jurisdictional error in committing the accused on the charge of Attempt Murder by committing the accused in the absence of evidence of identity and relying on post-offence conduct that a properly instructed jury could not use to support an inference of guilt. [ 3 ] With respect to the trafficking firearm counts, the Applicant submits that the preliminary hearing Justice exceeded his jurisdiction by allowing the Crown to re-open its case following submissions.

Transfer Firearm [ 4 ] In relation to the charge of Transfer Firearm the Crown introduced a series of text messages from a Blackberry Messenger account associated with the Applicant. These text messages supported the inference that the Applicant was discussing selling firearms to unknown third parties. During the Crown’s case the Crown did not present any evidence that the Applicant was not authorized to transfer a firearm. [ 5 ] In closing submissions on committal counsel for the Applicant pointed out that the Crown had failed to present evidence on one of the elements’ of the charge of Transfer Firearm.

In response the Crown requested that Justice Currie allow the Crown to reopen its case and present fresh evidence. Justice Currie granted the Crown’s request and the Crown filed the affidavit of Jason Matthew Morris Eibers, which stated that the Applicant was not authorized to transfer a firearm. Position of the Applicant [ 6 ] The Applicant submits that Justice Currie’s decision to allow the Crown to re-open its case violated the principle of justice captured in s.7of the Charter . As such it was a denial of natural justice amounting to a jurisdictional error.

When Justice Currie re-opened the evidence the Applicant was being forced to make the Crown’s case against himself. Position of the Crown :

[7] The Crown submits that Justice Currie acted within his jurisdiction when he allowed the Crown to re-open its case.Any error, assuming one existed, would be an error in law and is not reviewable by this court.

Justice Currie’s Oral Ruling to Re-Open [8] It is informative and important to set out portions of Justice Currie’s ruling as it will give context to the conclusion that Imake. [9] Firstly Justice Currie acknowledges that “we’re at the preliminary inquiry stage which is, in my view, significantlydifferent.” [10] At page 31 of the August 24, 2016 transcript, Justice Currie states the following: Most recently, one of the amendments included the concept of requests by accused persons for a preliminary inquiry and filing what’sreferred to as a statement of issues and witnesses.

I certainly don’t want to discourage any parties in these courts from continuing to haveinformal discussions about what’s relevant and what’s required at any of these proceedings, and this case is a good example, I think, ofcounsel who have co-operated with one another throughout in terms of focusing the issues and narrowing the evidence required to becalled in this case.

Unfortunately, it appears there was some misinterpretation, perhaps, on one or both parties’ parts in terms of whatreally was an issue at this preliminary inquiry and as a result of that miscommunication we find ourselves here, now with the Crownapplying to call further evidence on an issue that the Crown, in good faith, didn’t think, in my view, was required. In all thesecircumstances, and bearing in mind that this is a preliminary inquiry and not a trial, I am prepared to allow the Crown, if it wishes to callfurther evidence on the issue of whether or not Mr. Prempeh is authorized to deal in firearms.

Analysis and Conclusion [11] The ruling by Justice Currie to allow the Crown to re-open was an evidentiary ruling. An evidentiary ruling, even ifdecided wrongly, does not amount to jurisdictional error. In R v. LeBlanc (2009), 2009 NBCA 84 , 250 C.C.C. (3d) 29(N.B.C.A.) the court set out the following at para. 58: In

summary, I am of the view that the decision challenged by way of Certiorari was an evidentiary ruling that is insulated from judicialreview. It was a ruling the justice made in the course of exercising the powers conferred upon him by the Criminal Code, thus madewithin the scope of his jurisdiction. If his ruling was in error, it constituted at most an error of law and not a jurisdictional error.Certiorari is only available to quash a jurisdictional error, not an error of law… [12] Justice R. Dan Cornell J. dealt with the Standard of Review in R. v.

L.(R.J.) 2010 ONSC 5374 commencing at paragraph13 as follows: The leading cases on the standard of review on a certiorari application to quash a committal for trial are Quebec (Attorney General) v.Cohen, (SCC), [1979] 2 S.C.R. 305 (“Cohen”) and Forsythe v. R., (SCC), [1980] 2 S.C.R. 268(“Forsythe”). In these cases, the Supreme Court held that certiorari should only be granted where the preliminary inquiry judge makesa jurisdictional error.

In Forsythe, Laskin C.J., writing for the court, noted that the failure by the preliminary inquiry judge to observe amandatory provision of the Criminal Code, or the denial of natural justice are two examples of jurisdictional errors.

Laskin C.J.continued, “mere disallowance of a question or questions on cross-examination or other rulings on proferred evidence would not, in myview, amount to jurisdictional error.” A similar finding was made in Cohen, in which Pigeon J., writing for the court, held, at p. 301,“certiorari lies only for lack of jurisdiction and a decision concerning the admissibility of evidence, even if erroneous, does not affectjurisdiction.” More recently, in R. v.

Gallant (2009), 2009 NBCA 84 , 250 C.C.C. (3d) 29 (N.B.C.A.), Richard J.A. of the New BrunswickCourt of Appeal canvassed a number of decisions holding that certiorari provides a remedy only where there is a jurisdictional error. After having reviewed these cases, Richard J.A. endorsed, at para. 48, the statement of Schuler J. in R. v. Auger, 2001 NWTSC 30, [2001], N.W.T.J.

No. 28, that where an error is “one in the application of legal principles or rules of evidence, and there is nofailure to comply with a statutory provision, the preliminary inquiry judge acts within his or her jurisdiction and the error does not resultin loss of that jurisdiction.” These cases demonstrate that it is a well-established principle that certiorari will only be a remedy where a preliminary inquiry judge hasacted beyond their jurisdiction.

An error as to the admissibility of evidence is not a jurisdictional error and, as such, is not reviewable ona certiorari application. [13] I am not satisfied that the learned Justice committed a jurisdictional error and on that basis the Application as it relates tothe transfer firearms charges, is dismissed. Attempt Murder [14] With respect to this charge it is useful to start the discussion with portions of Justice Currie’s ruling. It is important tonote that Justice Currie attaches significant weight to the after-the-fact conduct to support his ultimate conclusion of committal.

Theapplicant takes issue with that and submits that Justice Currie committed jurisdictional error in doing so. [15] In his reasons for committal Justice Currie acknowledges that the video evidence on its own would be insufficient forcommittal. He states: I have the video evidence before me showing the vehicles in the area and the one vehicle, in particular, that is parked, and from thatvehicle someone emerges, approaches the address we have been described as the place of a shooting and then returns to the vehicle.

There is video evidence, as both Mr. Goldman and Mr. Hendry point out is, would be insufficient for me to commit you, or anyone for trial on that charge, standing on its own. [ 16 ] Mr. Owusu Prempeh, (no relation to the accused) identified the shooter as about four feet tall. [ 17 ] Justice Currie noted that Cst. Wood testified that she was five foot seven and she thought the accused was a few inches shorter than she was.

She testified she thought the accused was about five six, but then said the top of his head was somewhere around her mouth level. [ 18 ] At page 12 of the August 29, 2016 transcript, Justice Currie notes: So, again, as I say and both counsel agree, based only on the video, and whatever there is about the make of what appears to be a silver SUV, I do have the evidence of the one officer who says he recognizes that make and model as a Toyota Venza. I also heard from Ms.

Ugiabe, Tracy Ugiabe, she was the first witness called for the Crown, she wasn’t very helpful, but didn’t seem to have much recollection of anything, but Mr. Goldman did point out in cross-examination that she apparently had originally told the police that she saw the vehicle and described it as a Nissan with a Nissan symbol, a Murano. Again, these are difference pieces of evidence. If this were a trial, the trier of fact is going to have to weigh whatever Ms. Ugiabe says against what the officer says about this thinking in that the vehicle in the video was a Toyota Venza.

But, as a preliminary inquiry judge I can’t weigh that evidence. I can simply conclude that there is some evidence from the officer upon which the jury could rely to conclude that the vehicle in question is a Toyota Venza. Whether they do so conclude or not, I don’t know, but there is some evidence that that’s the type of vehicle. [ 19 ] It is at this time that there is a point of departure between the Applicant and the Crown on Justice Currie’s handling of the after the fact conduct. [ 20 ] The Applicant submits that the Crown needed the after the fact conduct to anchor a committal on this charge.

The Applicant argues that Justice Currie improperly and incorrectly weighed this evidence and in doing so committed jurisdictional error. [ 21 ] The Applicant submits that in order for after the fact conduct to rise to the level of circumstantial evidence that could possibly support a finding of guilt, it should be consistent with the other evidence and point clearly towards an inference of guilt. [ 22 ] At paragraph 38 of his factum, the Applicant sets out the following: It is respectfully submitted that the evidence does not support any reasonable inference of guilt on the charge of Attempt Murder.

As Tracey Ugiabe identified the car on the scene as a Nissan and due to the weaknesses in Cst. Mavity’s identification of the car in the surveillance footage as a Venza, a proper exercise in limited weighing of the evidence closes off the possible inference that the car is a Venza. And the Applicant’s calls to the car dealerships must be examined in context: the Applicant had discovered that the police were lying to him in order to create new evidence linking him to a shooting as well as a prior homicide. In this context the post-offence conduct does not suggest guilt.

The Applicant ought to have been discharged. [ 23 ] The Crown submits that the cumulative effect of after the fact conduct clearly leads to an inference that the Applicant is the shooter and demonstrates the following: − a concern over the existence of GPS data on his mother’s Toyota Venza which could implicate the vehicle in the crime − a plan between the Applicant, his family members, and Nana Nkansah to come up with a plan on what should be told to the police and; − the destruction of video evidence which could assist the police. [ 24 ] Commencing at page 13 of the August 29, 2016 transcript, Justice Currie dealt with all of the after the fact conduct evidence.

I will set out portions of his reasons to give this issue context: − I heard evidence from the investigating officers that they are conducting what they referred to as stims or stimulations to aid in their investigation of this matter − Denise, your sister, tells you that the police were asking about whether your mother drives a Venza and who else lives in the house − Detective Arnold lets you know that he’s inquiring about an incident back on April 20 on your street involving a silver SUV… There are discussions about the SUV and the GPS which may or may not be in that type of vehicle − Detective Arnold says “So if we did a download on the Venza it would tell us where the car was, to the meter, on the night of our incident and the time, the exact time it stopped, where it stopped, when the brakes were pushed, when the seatbelts were taken off, how many people were sitting in the car.” − the conversation between you and a person named Nana Nkansah … So, less than 10 minutes after the conversation with Detective Arnold takes place, there a conversation between you and this Nana person where you say, “Yo fam, jokes are on me, dog, they’re on me dog, they’re on me for this shit”, and there’s some reference to a GPS situation from what you’ve described as your mom’s whip At the end of that short excerpt you say, my sister going to say that she was using, driving the whip the whole day − then at 12:07 for the following, over the next approximately two hours, there are transcripts of your calling, I think its six or seven in total, Toyota dealerships asking about the 2014 Toyota Venza and whether they are equipped with the GPS device or navigation device and whether they can be tracked and even if it doesn’t have a navigation device, is there something in the vehicle that could be

downloaded… [25] Justice Currie notes at this point: All of that evidence is something the jury is going ot have to consider about wehther or not these are actions which would be taken andconversations which would be made by a person who had nothing to do with the siliver SUV that we see in the videos. [26] In conclusion Justice Currie states the following: The reaction and the inquiries made by you in relation to the question of whether this vehicle could be located on GPS, conversationsyou had with some of those individuals and your mother about the vehicle, is all evidence upon which the jury could, in my view, drawsthe inference that you were guilty of the offence….

The Preliminary Inquiry – Threshold for Committal [27] The duty imposed upon a justice at a preliminary inquiry is the same that governs a trial judge sitting with a jury indeciding whether the evidence is sufficient to justify withdrawing the case from the jury. The question for the preliminary inquiry judgeis whether there is any evidence on which a reasonable jury, properly instructed could convict. US.A. v. Sheppard (1976) (SCC), 30 C.C.C. (2d) 424 (S.C.C.); and R. v.

Arcuri, 2001 SCC 54 , 157 C.C.C. (3d) 21 (S.C.C.). [28] In Arcuri, the court set out the following at paras. 21 to 23, and 30: The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judgeconsidering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properlyinstructed could return a verdict of guilty”: Shephard, supra, at p. 1080; see also R. v. Monteleone, (SCC), [1987] 2S.C.R. 154, at p. 160.

Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there isadmissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080. The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, (SCC), [1986] 1 S.C.R.802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge’s task, however, varies according to the type of evidence thatthe Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward.

Bydefinition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt’s Manual of CriminalEvidence (1998), at §8.0 (“[d]irect evidence is evidence which, if believed, resolves a matter in issue”); McCormick on Evidence (5th ed.1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at §2.74 (directevidence is witness testimony as to “the precise fact which is the subject of the issue on trial”). It is for the jury to say whether and howfar the evidence is to be believed: see Shephard, supra, at pp. 1086-87.

Thus if the judge determines that the Crown has presented directevidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of theoffence, the accused must be committed to trial. The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has notadvanced direct evidence – may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requiresthe judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gapbetween the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should bebelieved: see Watt’s Manual of Criminal Evidence, supra, at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real,other than the testimony of an eyewitness to a material fact.

It is any fact from the existence of which the trier of fact may infer theexistence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but evenif the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge musttherefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asksthe jury to draw. This weighing, however, is limited.

The judge does not ask whether she herself would conclude that the accused isguilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, couldreasonably support an inference of guilt. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assesscredibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properlyinstructed jury to infer guilt.

Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidenceitself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantialevidence. [29] In R. v. Sazant, 2004 SCC 77 , [2004] 3 S.C.R. 635 (S.C.C.), the court stated the following at para 18: The preliminary inquiry judge in this appeal, Moore J., correctly stated the test for committal and the corresponding onus that falls onthe Crown.

He also recognized that a preliminary inquiry judge is not permitted to assess credibility or reliability, and that where morethan one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. A preliminaryinquiry judge who fails to respect these constraints acts in excess of his or her jurisdiction: see Dubois v. The Queen, (SCC), [1986] 1 S.C.R. 366, at p. 380.

[30] In R. v. Munoz, (ON SC), [2006] O.J. No. 446 (Ont. Sup. Ct.), Ducharme J. reviewed the Test forCommittal at paras. 19 to 22 as follows: One of the purposes of the preliminary inquiry is to determine whether there is sufficient evidence to commit an accused person to trial.Section 548(1) of the Criminal Code, R.S.C. 1985, c. C-46, requires the preliminary inquiry judge to order the accused to stand trial, "ifin his opinion there is sufficient evidence" and to discharge the accused, "if in his opinion on the whole of the evidence no sufficient caseis made out".

Thus, the question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as thatasked by a trial judge considering a motion for a directed verdict, namely, "whether or not there is any evidence upon which a reasonablejury properly instructed could return a verdict of guilty".

Under this test, a preliminary inquiry judge must commit the accused to trial "inany case in which there is admissible evidence which could, if it were believed, result in a conviction". [See Note 4 below] In order to commit an accused for trial on a charge, a preliminary inquiry justice must find evidence of each essential element of theoffence, which, if believed by a properly instructed jury, could result in a conviction. The preliminary hearing judge may not assess thecredibility of witnesses or weigh the evidence for competing inferences in determining whether there is sufficient evidence forcommittal.

The test is the same whether the Crown is relying on direct evidence or circumstantial evidence. However, in each of thesecircumstances the process engaged in by the preliminary inquiry must be different. Where the Crown is relying on direct evidence with respect to the essential elements of the offence, the task of the preliminary inquiryjudge is quite straightforward. As McLachlin C.J.C. explained in Arcuri, supra, at p. 839 S.C.R., p. 31 C.C.C.: [page143] By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true . . .

It is for the jury to saywhether and how far the evidence is to be believed. . . Thus if the judge determines that the Crown has presented direct evidence as toevery element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, theaccused must be committed to trial. (Emphasis added) Where the Crown seeks a committal on the basis of circumstantial evidence, the task of the preliminary inquiry judge becomessomewhat more complex.

This was also explained in Arcuri, supra, per McLachlin C.J.C. at pp. 840 S.C.R., pp. 31-32 C.C.C.: The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has notadvanced direct evidence -- may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requires thejudge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gapbetween the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should bebelieved. . . . The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting theinferences that the Crown asks the jury to draw. This weighing, however, is limited.

The judge does not ask whether she herself wouldconclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether theevidence, if believed, could reasonably support an inference of guilt. (Emphasis added) This limited weighing means that inferences to be drawn from circumstantial evidence need not be "compelling" [See Note 5 below] oreven "easily drawn" [See Note 6 below] in order to be reasonable. If there are competing inferences, these are for the trier of fact toresolve.

A preliminary inquiry judge commits jurisdictional error where he weighs competing inferences or chooses among them. [SeeNote 7 below] If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for theirdetermination. As Major J. put it in R. v. Sazant, 2004 SCC 77 , [2004] 3 S.C.R. 635, [2004] S.C.J.

No. 74, at para. 18, "wheremore than one inference can be drawn from the evidence, only the inferences that favour the Crown are to [page144] be considered".Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting apreliminary inquiry is required to draw it. However, despite the very circumscribed scope of the preliminary inquiry judge's function with respect to the drawing of inferences, theweighing of the evidence involved, while limited, is of great importance.

Any inferences relied upon by the judge to commit the accusedmust be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be basedon speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot bereasonably drawn from the evidence -- the accused must be discharged as there would be an absence of evidence on an essential element. [31] In R. v. Campbell, (ON CA), [1999] O.J.

No. 4041, (Ont.C.A.), our Court of Appeal dealt with whatconstitutes jurisdictional error at paras. 4 to 8: In setting aside the discharge and ordering the appellants to stand trial on the manslaughter charges McCombs J. said this: In my opinion, the learned preliminary hearing judge clearly exceeded his jurisdiction in concluding on the evidence before him that “there is no evidence any of these accused were even present when the deceased was shot.” On the contrary, there

was, inter alia, evidence of motive in the form of hostility to the deceased’s brother by one of the respondents; evidence of a stated intention by one of the respondents to “shoot up Bay Mills”; eyewitness evidence that all of the respondents were discharging firearms at or near the scene moments before the homicide; and evidence of the use by one or more of the respondents of a firearm of the same calibre as the gun used to kill Frederick Idemudia.

The determination of the credibility of the witness and the cumulative weight of the evidence is not for the determination of a judge presiding over a preliminary hearing, but is reserved for the trier of fact. In the face of this evidence, the conclusion of the preliminary hearing judge discharging the respondents on the manslaughter charge amounted to a usurpation of the function reserved for the trier of fact. In doing so, he exceeded his jurisdiction. [5] We agree with this analysis. [6] The case against the appellants on the manslaughter charges is founded on circumstantial evidence.

In such a case it is the entirety of the circumstantial evidence together with any inferences that could reasonably be drawn from that evidence that must be measured against the standard in s.548(1) of the Criminal Code. [7] As Campbell J. said in R. v. McIlwain (1988) 67 C.R. (3d) 397 (O.H.C.) at 399, the preliminary hearing is not the forum for weighing competing inferences or for selecting from among them. That is the province of the trier of fact at trial. In Dubois v.

The Queen (1986) (SCC), 25 C.C.C. (3d) 221 (S.C.C.), Estey J. made it clear that it is jurisdictional error for a preliminary hearing judge to enter upon this province. He put it this way at 231-2: In applying the wrong test for sufficiency, a preliminary inquiry judge does not commit jurisdictional error. In deciding an issue reserved to another forum, however, he does.

[8] Given this clear law, in this case it is unnecessary to articulate an all encompassing test for jurisdictional error when an accused is discharged after a preliminary hearing. Here the preliminary hearing judge rested his decision to discharge the appellants on his “no evidence” findings. However, these findings are not the only factual conclusions that could reasonably be drawn from this evidence.

As McCombs J. points out in the passage quoted above, there are other inferences that could reasonably be drawn from all the circumstantial evidence and upon which a reasonable jury, properly instructed, could find the appellants guilty of manslaughter. The preliminary hearing judge, in effect, rejected these other inferences in preference to the factual conclusions which he recited. In doing so he committed jurisdictional error by deciding the question reserved for the trier of fact. [32] In R. v. Foster, [2008] Can LII 8419 (Ont. Sup.

Ct.), Hill J. set out the following at para 31 with respect to the role of thereviewing court and the function of the Preliminary Hearing Court. Justice Hill’s

summary of the legal principles is informative: Between the parties there is no disagreement as to the governing principles relating to the jurisdiction of a preliminary inquiry judge orthe court engaging in certiorari review. The point of departure is the application of some of these guidelines to the record before theprovincial court. Therefore, only a

summary statement of principles is necessary. Role of the Reviewing Court

(1) The court reviewing by certiorari a committal for trial exercises limited authority for intervention: (

i) The court may, in its discretion, provide a remedy for jurisdictional error alone: R. v. Deschamplain (2005), 2004 SCC 76, 196 C.C.C. (3d) 1 (S.C.C.) at 10; R. v. Russell (2001), (ON CA), 156 C.C.C. (3d) 1 (S.C.C.) at 10, 13;R. v.

Dubois (1986), 25 C.C.C. (2d) 221 (S.C.C.) at 224, 229-30. (ii) The reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properlyinstructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justiceupon which acting judicially he or she could form an opinion that the evidence is sufficient to put the accused on trial: R. v. Collin,[2004] O.J. No. 791 (C.A.) at para. 2; R. v. Tuske, [1978] O.J. No. 1253 (C.A.) at para. 3; R. v. Coke, [1996] O.J.

No. 808 (S.C.J.) atpara. 12-13. (iii) Supervisory review is not permitted to overturn a committal decision merely because the preliminary inquiry judge “reached aconclusion different from that which the reviewing court would have reached”: R. v. Russell, at 10.

(2) While an erroneous ruling regarding the admissibility of evidence does not affect the preliminary inquiry judge’s jurisdiction(Deschamplain, at 9-10; R. v. Fisher, [1987] O.J. No. 331 (C.A.) at 2), in the sense that the court has the right to be wrong (an error oflaw) acting within its jurisdiction, and recognizing that there exists no closed list of jurisdictional errors, the following constitute sucherrors: (

a) committal where no evidence exists on an essential element of the crime charged (R. v. Skogman (1984), (SCC),13 C.C.C. (3d) 161 (S.C.C.) at 168) or, equally arbitrarily, failing to consider the whole of the evidence, in deciding whether there issome, as opposed to no, evidence: R. v. Deschamplain, at 11, 14-6; R. v. Sazant (2004), 2004 SCC 77 , 208 C.C.C. (3d) 225(S.C.C.) at 233-5; R. v. Thomson (2005), (ON CA), 74 O.R. (3d) 721 (C.A.) at para. 11 (

b) failure to observe a mandatory provision of the Criminal Code: R. v. Deschamplain, at 10; R. v. Forsythe (1980), (SCC), 53 C.C.C. (2d) 225 (S.C.C.) at 229 (

c) applying an incorrect test for committal and thereby “deciding an issue reserved to another forum”: R. v. Dubois, at 230-2 (

d) engaging in impermissible weighing of competing inferences: R. v. Sazant, at 234; R. v. Laframboise & Odette, [2007] O.J. No.4212 (C.A.) at para. 1, 3; R. v. Clarke, (ON CA), [2002] O.J. No. 2340 (C.A.) at para. 4; R. v. Campbell (1999),

(ON CA), 140 C.C.C. (3d) 164 (Ont. C.A.) at para. 8.

(3) Once the superior court of criminal jurisdiction exercising prerogative writ authority finds jurisdictional error on the part ofthe preliminary inquiry court, the court is “to assess the sufficiency of the evidence in order to determine the appropriate remedy”: Laframboise & Odette, at para. 4. Function of the Preliminary Hearing Court

(4) A justice acting under

Part XVIII of the Criminal Code pursuant to s. 548(1), “[w]here all the evidence has been taken” at thepreliminary inquiry, “shall”: …if in his [her] opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence inrespect of the same transaction, order the accused to stand trial…

(5) In forming an “opinion” as to the evidence’s sufficiency to justify committal, the justice exercises a discretionary, butconstrained, assessment of the evidence. The whole of the admissible evidence is to be considered.

(6) If there is sufficient evidence upon which a reasonable and properly instructed jury could find guilt, the preliminary inquiryjudge must commit to trial: R v. Savant, at para. 16; R. v. Arcuri (2001), 2001 SCC 54 , 157 C.C.C. (3d) 21 (S.C.C.) at 31. Thiscommittal test is the same whether the evidence is direct or circumstantial: Arcuri, at 31, 36; R. v. Monteleone (1987), (SCC), 35 C.C.C. (3d) 193 (S.C.C.) at 198.

(7) The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence ofeach of the elements of the offence charged – even if only a scintilla of evidence: (R. v. Martin, (ON CA), [2001]O.J. No. 4158 (C.A.) at para. 3; R. v. Olubowale, [2001] O.J. No. 961 (C.A.) at para. 8, 10) provided “it registers in the scales as anyevidence at all within the Sheppard test” (R. v. McIlwain (1988), (ON SC), 67 C.R. (3d) 393 (Ont. H.C.J.) at 309(McIlwain approved, R. v. Montour, [2002] O.J. No. 141 (C.A.) at para. 4; and in R. v.

Campbell at 165)). “To be logically relevant, anitem of evidence does not have to establish on any standard, the truth or falsity of a fact in issue” – it need only “tend to increase ordiminish the truth or falsity of a fact in issue” – “there is no minimum probative value required for evidence to be relevant”: R. v. Arp(1999), (SCC), 129 C.C.C. (3d) 321 (S.C.C.) at 338.

(8) As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence: R.v. Deschamplain, at 9; R. v. Savant, at para. 18; R. v. Cinous (2002), 2002 SCC 29 , 162 C.C.C. (3d) 129 (S.C.C.) at 172. Inother words, the preliminary inquiry is not “a forum for litigating the merits of the case against the accused”: R. v. Russell, at 11. Wheremore than one inference can be drawn from the evidence, “only the inferences that favour the Crown are to be considered”: R. v. Savant,at para. 18.

Because of the limited focus of a preliminary inquiry, the provincial court must commit for trial even if the defence proffersexculpatory evidence: R. v. Savant, at para. 16.

(9) The prohibition against weighing evidence in assessing the committal question is narrowly modified where the prosecutionadduces circumstantial evidence said to point toward guilt. The preliminary inquiry judge, in determining whether the elements of theoffence may be reasonably inferred from circumstantial evidence, is permitted to engage in a “limited weighing” of such evidence to theextent of assessing “the reasonableness of the inferences to be drawn from the circumstantial evidence”: R. v. Arcuri, at 35.

(10) In circumstantial evidence cases, there may exist not one, but a range or field of reasonable inferences which may be drawn. The ultimate determination as to whether an available reasonable inference ought to be drawn is for the trier of fact – a judge is not to askwhether facts ought to be inferred and is not to make “determinate factual inferences”: R. v. Cinous, at 157, 171, 173; R. v. Arp, at 353. In other words, a preliminary inquiry justice acts in excess of jurisdiction where he or she chooses from amongst competing or alternativereasonable inferences: R. v.

Figueroa et al., 2008 ONCA 106 , [2008] O.J. No. 517 (C.A.) at para. 34; R. v. D.M., [2008] O.J.No. 326 (C.A.) at para. 5. A preliminary hearing court is not to apply the rule in Hodge’s Case to determine whether a reasonableinference is consistent with guilt and inconsistent with any other rational explanation: R. v. Charemski (1998), (SCC),123 C.C.C. (3d) 225 (S.C.C.) at 230; R. v. Monteleone, at 198; R. v. Mezzo (1986), (SCC), 27 C.C.C. (3d) 97 (S.C.C.)at 107. Nature of Circumstantial Evidence

(11) In a preliminary hearing, the prosecution leads relevant evidence in the form of primary facts. From these factualcircumstances, the Crown may seek to establish the existence of a fact in issue, i.e. identity of the perpetrator, by submitting that aninference may reasonably and circumstantially be drawn from the primary facts – there exists an inferential gap between the primary factand the fact to be proved: R. v. Arcuri, at 31-2; R. v. Cinous, at 172-3. Whether the inference is a reasonable one to draw usuallyinvolves an application of “human experience and common sense” (R. v.

Figueroa et al., at para. 33; U.S.A. v. Huynh (2005), (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307) at times described as informal judicial notice: McWilliams’ CanadianCriminal Evidence (4th ed.), S.C. Hill, D. Tanovich, L. Strezos (Aurora: Canada Law Book, 2003) at 23-6 to 16. The inferences to bedrawn will depend on the nature of the primary fact, the fact that is sought to be inferred from it, the position of the parties, and thetotality of the evidence: R. v. Figueroa, at para. 33. A single item of circumstantial evidence may be the only evidence of an essentialelement of the offence: R. v. Arp, at 353.

(12) Circumstantial inferences are ones which “can be reasonably and logically drawn from a fact or group of facts established bythe evidence”: R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. A trier of fact “cannot beinvited to draw speculative or unreasonable inferences”: R. v. Figueroa et al., at para. 35, 42. Most cases “will involve hiatuses in theevidence which can be filled only by inference”: Lameman v. Canada (Attorney General), 2006 ABCA 392 , [2006] A.J. No.

1603 (C.A.) at para. 87. “The process of drawing inferences from evidence is not, however, the same as speculating even where thecircumstances permit an educated guess”: U.S.A. v. Huynh, at 307. The same point is made in C.P.R. Co. v. Murray, (SCC), [1932] S.C.R. 112, at 117, in adopting the following dicta from Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 at 45: The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of nolegal value, for its essence is that it is a mere guess.

An inference in the legal sense, on the other hand, is a deduction from the evidence,and if it is reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always amatter of inference. The cogency of a legal inference of causation may vary in degree between practical certainty and reasonableprobability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the directevidence, but this may be legitimately bridged by an inference from the facts actually observed and proved.

Indeed, as Lord Shaw saidin Marshall v. Owners of SS. Wild Rose [26 T.L.R. 608; [1910] A.C. 486, at 494.]: “The facts in every case may leave here and there ahiatus which only inference can fill.” The true doctrine in the matter is clearly stated by Lord Penzance in Parfitt v. Lawless [(1872)L.R., 2 P.&D., 462, at 472.]: “It is not intended to be said that he upon whom the burthen of proving an issue lies is bound to proveevery fact or conclusion of fact upon which the issue depends.

From every fact that is proved legitimate and reasonable inferences may,of course, be drawn, and all that is fairly deducible from the evidence is as much proved for the purpose of a prima facie case as if it hadbeen proved directly.” I conceive, therefore, that in discussing whether there is in any case evidence to go to the jury, what the Court hasto consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exerciseof a reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue.

(13) Some inferences are strong and capable of creating practical certainty while others are weaker: Lameman v. Canada (AttorneyGeneral), at para. 94. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw (R.v. Katwaru (2001), (ON CA), 153 C.C.C. (3d) 433 (Ont. C.A.) at 444) or indeed the most obvious or compellinginference: R. v. Munoz, (ON SC), [2006] O.J. No. 446 (S.C.J.) at para. 21-31. The justice is obliged to consider thecumulative effect of the evidence said to point toward guilt on the part of the accused.

Especially in a case premised wholly or in largemeasure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative forceflowing therefrom without regard to the context of the totality of the evidence: R. v. Coke, at para. 9. Test for Certioriari [33] The test for certiorari has been set out in numerous cases. The test is whether there was any evidence upon which thecommitting justice could have formed the opinion that the evidence was sufficient for the accused to stand trial.

The reviewing courtdoes not determine whether a properly instructed jury could convict, but whether there was any evidence before the committing justiceupon which the justice could form the opinion that the evidence is sufficient to put the accused on trial. The reviewing court does notsubstitute its opinion of the evidence for that of the preliminary inquiry justice. [34] In R. v. Russell, 2001 SCC 53 , [2001] S.C.J. No. 53, the court stated at paras. 19 and 20: The scope of review on certiorari is very limited.

While at certain times in its history the writ of certiorari afforded more extensivereview, today certiorari “runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term‘jurisdiction’ being given its narrow or technical sense”: Skogman v. The Queen, (SCC), [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunalcommitted an error of law or reached a conclusion different from that which the reviewing court would have reached.

Rather certioraripermits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach ofthe principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, supra, at p. 100 (citingForsythe v. The Queen, (SCC), [1980] 2 S.C.R. 268). With respect to preliminary inquiries held under s. 548 of the Criminal Code, the reasons for limiting the scope of supervisory remediesis clear.

While the preliminary inquiry also affords defence counsel the opportunity to assess the nature and strength of the case againsthis or her client, its primary purpose is to ascertain whether there is sufficient evidence to warrant committing the accused to trial:Skogman, supra, at p. 106 (citing G. Arthur Martin, Q.C.: “Preliminary Hearings”, Special Lectures of the Law Society of UpperCanada (1955), p. 1); Dubois v. The Queen, (SCC), [1986] 1 S.C.R. 366, at pp. 373-74. Critically, the preliminaryinquiry is not meant to determine the accused’s guilt or innocence. That determination is made at trial.

The preliminary inquiry serves ascreening purpose, and it is not meant to provide a forum for litigating the merits of the case against the accused. The limited scope ofsupervisory remedies reflects the limited purpose of the preliminary inquiry. [35] In R. v. Mullings, [2005] Can LII 24763 (Ont. Sup. Ct), Durno J. set out the following at paras. 31 to 33: While the committing justice was required to apply the “sufficiency” test discussed above, on certiorari a reviewing justice is required toapply the test stated by Martin J.A. in R. v. Tuske, [1978] O.J.

No. 1253 (C.A.)(QL) at para. 3: [T]he reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed juryacting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon whichacting judicially he could form an opinion that the evidence is sufficient to put the accused on trial. A court reviewing a committal order is not permitted to interfere with the order if there is “some evidence” or “a scintilla of evidence”respecting each essential element of the offence charged: Re.

Skogman and the Queen, supra; R. v. McFarlane, [2004] O.J. No. 2108(C.A.)(QL). As is the case in many certiorari applications, much of the argument in this case centered around whether the inferences the committingjustice found a reasonable jury could draw were inferences, as the Crown contends, or were based on speculation and conjecture fromequivocal or no evidence, as the defence argues. In R. v. Latif (unreported judgment dated October 14, 2004)(S.C.J.) CunninghamA.C.J. held, “there is a considerable difference between speculation and inference. An inference is “a truth of proposition drawn from

another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established isdeduced as a logical sequence from other facts or a state of facts already proven or admitted”. Speculation, is forming a theory orconjecture without factual basis: Oxford Concise Dictionary. [36] The scope of review was articulated in R. v. Martin, [2001] Can LII 497 (Ont. C.A.), at para 3 as follows: We see no error on the part of MacDougall J. warranting this court’s intervention.

As the appellants concede, the test to be applied by apreliminary inquiry judge in determining whether the evidence is sufficient for the purpose of a committal for trial is whether there isany evidence upon which a properly instructed jury, acting reasonably, could find guilt. It is well settled that where there is a scintilla ofevidence upon which the preliminary inquiry judge could conclude that the test is satisfied, a reviewing court should not intervene toquash the committal See also R. v.

Russell, [2001] S.C.C. 53 where the Supreme Court of Canada reaffirmed the limited scope of reviewon certiorari to review committals for trial and reiterated that a preliminary inquiry judge’s determination of the sufficiency of evidenceis entitled to the greatest deference. It is only if there is no evidence on an element of the offence that a reviewing court can vacate thecommittal. [37] In R. v. Eickmeier, [2007] Can LII 18024 (Ont.

S.C.), Quinn J. reiterated these principles at paras. 16 to 23: It is trite law that, on an application to quash a committal for trial, the court is not exercising an appellate-review function. [R]eview on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunalcommitted an error of law or reached a conclusion different from that which the reviewing court would have reached”: see R. v. Russell,2001 SCC 53 , [2001] 2 S.C.R. 804 at para. [19], citing R. v.

Skogman, (SCC), [1984] 2 S.C.R. 93 at 100. lack or excess of jurisdiction A committal to stand trial may be quashed only on the ground of a lack of or excess of jurisdiction: see R. v. Deschamplain (2004), 2004SCC 76 , 196 C.C.C. (3d) 1 (S.C.C.) at para. [17]. Acting in excess of jurisdiction arises where there has been a failure to observe a mandatory provision of the Criminal Code or wherethere has been a denial of natural justice. Failure to prove an essential element of the offence amounts to jurisdictional error: see R. v.Deschamplain, supra, at paras. [17] and [23].

Committing an accused to stand trial without any evidence is an obvious example of a committal without jurisdiction. “some evidence” Where there is “some evidence” to justify the decision to commit for trial, it is within the jurisdiction of the preliminary inquiry justiceto decide whether this evidence is of sufficient weight to order the accused to stand trial: see R. v. Deschamplain, supra, at para. [23].

The role of the reviewing court is to determine whether there was any evidence at the preliminary inquiry that would allow the justice,acting judicially, to form the opinion that there was sufficient evidence to order the accused to stand trial: see Martin, Simard andDesjardins v. The Queen (1977), (ON CA), 41 C.C.C. (2d) 308 (Ont. C.A.); aff’d (SCC), [1978] 2S.C.R. 511; and R. v. Sequin (1982), 31 C.R. (3d0 271 (Ont. C.A.).

If there is some evidence and if the preliminary inquiry justice has “properly directed his mind to the evidence and to the question ofwhether there was ‘sufficient evidence’ to commit, his decision is not subject to review”: see R. v. Skogman, (SCC),[1984] 2 S.C.R. 93 (S.C.C.) at para. 169. Conclusion [38] I am not satisfied that the learned Justice committed jurisdictional error. Justice Currie dealt with after the fact conductand it was open to him to find that the test for committal had been met.

It is not my role as the reviewing court to substitute my opinionof the evidence for that of the preliminary inquiry Justice. [39] In his reasons Justice Currie correctly points out that the testimony of Ms. Ugiabe relating to the vehicle being a Nissanwas not very helpful.

He noted that she did not seem to have much recollection of anything. [40] Further Justice Currie ruled that the officer could give evidence about recognizing the vehicle as a Toyota Venza.Justice Currie correctly notes that there is, therefore, some evidence from the officer upon which a jury could rely to conclude that thevehicle in question is a Toyota Venza. It is within that context then, that the after the fact conduct gains its probative value andevidentiary strength.

The after the fact conduct cannot be viewed in isolation from the totality of the evidence in determining thethreshold for committal. [41] The authorities make it clear that the reviewing court is not empowered to determine whether in its opinion there is anyevidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there is anyevidence before the committing justice upon which acting judicially he or she could form an opinion that the evidence is sufficient to putthe accused on trial. [42] The Application, is therefore, dismissed.

Justice J. Fragomeni Released: February 3, 2017 CITATION : R. v. Prempeh, 2017 ONSC 578 COURT FILE NO.: 1839/16 DATE: 20170203 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – JERMAINE PREMPEH REASONS FOR JUDGMENT Justice J. Fragomeni Released: February 3, 2017