R. v. Thomson

R. v. Thomson Collection Decisions of the Court of Appeal Date 2005-03-30 Docket numbers C41792 Judges Sharpe, Robert J.; Simmons, Janet M.; LaForme, Harry Smith Subject Criminal Decision Content DATE: 20050330 DOCKET: C41792 COURT OF APPEAL FOR ONTARIO SHARPE, SIMMONS and LAFORME JJ.A. B E T W E E N : HER MAJESTY THE QUEEN Respondent Stacey D. Young for the respondent - and - LAURA THOMSON Appellant Jonathan Dawe for the appellant Heard: March 14, 2005 On appeal from the order of Justice Bonnie J. Wein of the Superior Court of Justice dated April 13, 2004 granting certiorari to quash the order of Justice Katherine L. McLeod of the Ontario Court of Justice dated January 19, 2004 discharging the appellant following a preliminary inquiry. SHARPE J.A.: [1] Does a superior court judge, entertaining a Crown certiorari application to review an order discharging an accused after a preliminary hearing, have jurisdiction not only to quash the discharge but also to order that the accused be committed for trial? That is the issue to be decided on this appeal. [2] The appellant and an acquaintance, David Schroeder, were jointly charged with conspiracy to commit murder, attempted murder, and aggravated assault. The alleged victim was the appellant’s boyfriend, Grant Livingstone. The preliminary inquiry judge committed Schroeder to trial following a lengthy hearing but discharged the appellant on all counts. The Crown brought a certiorari application to the Superior Court seeking to have the discharge quashed. The Superior Court judge found jurisdictional error, quashed the appellant’s discharge, and committed her for trial on all counts. The appellant concedes that there was jurisdictional error justifying an order quashing her discharge but submits that the Superior Court judge had no jurisdiction to commit her for trial. [3] For the following reasons, I conclude that the Superior Court judge had no jurisdiction to commit the appellant for trial and that the proper order was to remit the matter to the preliminary inquiry judge for further consideration on the whole of the evidence. FACTS [4] The evidence before the preliminary inquiry judge was that on the evening of July 14, 2002 an intruder wielding a sharp object attacked Livingstone in the basement apartment that he shared with the appellant. The Crown’s theory was that the appellant and Schroeder conspired to kill Livingstone and that the appellant had facilitated the attack by restraining Livingstone on their bed, ostensibly as a prelude to sexual activity, before calling Schroeder and letting him into the locked apartment to attack Livingstone. [5] The Crown essentially built its case against the appellant on circumstantial evidence. There was evidence that the appellant and Livingstone routinely engaged in bondage for sexual purposes, although it was the appellant, not Livingstone, who was usually bound. The night of the attack, however, the appellant used Velcro straps to tie Livingstone to a bed in their apartment. She covered his head and face with a t-shirt and towel so that he could not see. The Crown led evidence indicating numerous telephone calls were made from the appellant’s cell phone to Schroeder immediately prior to the attack. She was alone with Livingstone and had the opportunity to unlock the apartment door so Schroeder could get in. The Crown also led evidence of an earlier conversation overheard by a witness, Jason Pollard, during which the appellant and Shroeder discussed hurting or killing Livingstone. [6] In discharging the appellant, the preliminary inquiry judge found: · there was no evidence of motive; · bondage was not an unusual feature of the sexual activity between the appellant and Livingstone; · there was no evidence that the appellant left the apartment after binding Livingstone to the bed; · Pollard’s evidence indicated that the appellant made efforts to try to talk Schroeder out of harming Livingstone; · the timing and contents of the cell phone calls were uncertain; · there was no evidence to indicate how Schroeder gained access to the apartment or whether the appellant had left the apartment before his arrival; and · there was evidence that the appellant was horrified at the site of the attack on Livingstone. [7] The Crown brought a certiorari application to quash the appellant’s discharge. At the time the application was heard, the application judge was bound by two decisions of this court that have since been overruled by the Supreme Court of Canada: R. v. Deschamplain, [2004] 3 S.C.R. 601, rev’g (2003), 186 O.A.C. 389 (C.A.); and R. v. Sazant, [2004] 3 S.C.R. 635, rev’g (2003), 67 O.R. (3d) 481 (C.A.). In Deschamplain and Sazant, this court had held that failure to consider “the whole of the evidence” constituted an error in assessing the sufficiency of the evidence, while an error of law, is not a jurisdictional error susceptible to review on certiorari. [8] The application judge cited and discussed this court’s decisions in Deschamplain and Sazant. She found that the preliminary inquiry judge fell into jurisdictional error by going beyond the limited weighing of evidence permitted in a case involving circumstantial evidence and resolving issues that should be left to trial. The application judge found: · there was some evidence of discord between the appellant and Livingstone from which motive could be inferred; · while bondage was not an unusual feature of the sexual relationship between the appellant and Livingstone, the preliminary inquiry judge had ignored the evidence that it was almost always the appellant who was bound; · the preliminary inquiry judge had ignored evidence to the effect that the appellant’s cell phone only worked outside her apartment; · the numerous calls made from the appellant’s cell phone were capable of supporting the inference that she had assisted Schroeder plan the attack; and · by concluding that the appellant had tried to talk Schroeder out of a plan to harm Livingstone, the judge was clearly weighing evidence and ignoring the possible competing inference that they had in fact conspired to kill or harm Livingstone. [9] The application judge concluded that the preliminary inquiry judge had exceeded her jurisdiction and usurped the role of the trier of fact by engaging in an impermissible weighing of the evidence and by choosing from among competing inferences those favouring the appellant. The application judge held that the discharge should therefore be quashed. Then, without further comment or citation of authority, but undoubtedly having in mind the practice followed in several cases to which I refer below, the application judge added: “This was not a close call. Accordingly, Ms. Thomson is committed for trial on all charges.” ANALYSIS [10] The appellant concedes that the reasons of the preliminary inquiry judge reveal jurisdictional error and does not contest the application judge’s order quashing the discharge. The appellant submits, however, that on certiorari the application judge had no jurisdiction to commit the appellant for trial. The appropriate order, according to the appellant, was to quash the discharge and remit the matter to the preliminary inquiry judge for further consideration. [11] The scope of review on certiorari with respect to a discharge must now be considered in view of the recent pronouncements from the Supreme Court of Canada in Deschamplain and Sazant, supra, overruling the decisions of this court that governed the application judge. Deschamplain and Sazant establish that the duty to consider “the whole of the evidence” imposed by s. 548(1)(b) of the Criminal Code is mandatory and that where the reasons of the preliminary inquiry judge do not indicate that this mandatory requirement has been met, the result is a loss of jurisdiction. While the jurisdictional error of the preliminary inquiry judge in the present case could perhaps be described in various ways, I agree with the appellant that in light of Deschamplain and Sazant , it is best characterized as a failure to consider the whole of the evidence. [12] I turn now to the application judge’s jurisdiction to order the appellant to stand trial. In Deschamplain, supra at para. 39, the order of the Supreme Court was to “set aside the discharge order and remit the matter to the preliminary inquiry judge to consider the whole of the evidence.” In Sazant, supra at para. 27, it was to “set aside the discharge order and remit the matter to the preliminary inquiry judge to consider the sufficiency of the evidence in light of these reasons.” In my view, an order framed in these terms is appropriate in the present case. [13] By not only quashing the discharge, but also committing the appellant for trial, the application judge followed a practice that has developed in the Superior Court regarding Crown certiorari applications to quash discharges after preliminary inquiry: see R. v. McIlwain (1988), 67 C.R. (3d) 393 (H.C.J.); compare, however, R. v. Tobin, [1990] O.J. No. 82 (H.C.J.), in which White J. held that the better approach was to remit the matter to the preliminary inquiry judge for reconsideration. Orders for committal made by Superior Court reviewing judges have been upheld by this court, but never with any consideration of the propriety of the practice: see, e.g., R. v. Campbell (1999), 155 O.A.C. 143 (C.A.), aff’g [1999] O.J. No. 1203 (Gen. Div.); R. v. Clarke (2002), 159 O.A.C. 221 (C.A.), aff’g [2001] O.J. No. 4629 (Sup. Ct.). [14] The only appellate decision to which we were referred that directly considers the point, R. v. Whynot (1994), 129 N.S.R. (2d) 347 (C.A.), holds that a superior court judge has no power to make a committal order on certiorari. Chipman J.A. stated, at paras. 16-17: Proceedings in the nature of certiorari involve bringing up for review a decision of an inferior tribunal. When a superior court gives relief on such an application, it can only undo, quash or set aside the proceedings of the inferior tribunal. Because certiorari is not a remedy akin to an appeal, the superior court cannot exercise the jurisdiction of the tribunal whose proceedings are challenged. At most, the superior court has but the power to send the proceedings back to be resolved on proper principles. The remedy that results is negative in nature. It is not positive. See Nova Scotia (Attorney General) v. Royal Commission (Marshall Inquiry) (1998), 87 N.S.R. (2d) 183 per Nunn, J.A. (ad hoc) at p. 187; Demont v. Liquor License Board (1985), 70 N.S.R. (2d) 78 per Clarke, J. (now C.J.N.S.) at p. 81. There has been no statutory enlargement of the court’s jurisdiction in granting an order in the nature of certiorari. Very often where additional relief is sought, another remedy such as habeas corpus, mandamus or prohibition may be invoked in aid of certiorari. [15] Chipman J.A.’s assessment of the powers available to a reviewing court on certiorari corresponds with the orthodox view of text writers and academic commentators. As de Smith, Woolf, and Jowell state in Judicial Review of Administrative Action, 5th ed. (London: Sweet & Maxwell, 1995) at 16-008: The scope of the prerogative orders reflects the general principle that it is not the role of the High Court in judicial review proceedings to substitute its decision for that of the original decision-maker … Where an order of certiorari is issued to quash a decision that has been made, the High Court may at the same time remit the matter back to the court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the judgment of the court. The following authors express similar views: D.C.M. Yardley, “The Grounds for Certiorari and Prohibition” (1959), 37 Can. Bar. Rev. 294 at 295; B.J. Gover and V.V. Ramraj, The Criminal Lawyers’ Guide to Extraordinary Remedies (Aurora, Ont.: Canada Law Book, Inc., 2000) at 39. [16] The authority to order an accused to stand trial following a preliminary inquiry is reserved to a “justice” under s. 548 of the Criminal Code. As defined by s. 2 of the Criminal Code, “justice” does not include a superior court judge. There is nothing in Part XXVI of the Criminal Code conferring jurisdiction upon a superior court judge dealing with a certiorari application to order that an accused stand trial. [17] The respondent submits that remitting the matter to the preliminary inquiry judge would amount to a mere formality and cause unnecessary delay. The respondent invites us to expand the remedial powers available on certiorari, citing Dagenais v. Canadian Broadcasting Corp. (1994), 94 C.C.C. (3d) 289 (S.C.C.) at 308, where Lamer C.J.C. stated: Traditionally, certiorari has been limited remedially. That is, it could only be used to quash an order. Thus, if the media were seeking an additional or alternative remedy, the desired remedy would appear to be unavailable through certiorari. However, it is open to this court to enlarge the remedial powers of certiorari and I do so now for limited circumstances. Given that the common-law rule authorizing publication bans must be consistent with Charter principles, I am of the view that the remedies available where a judge errs in applying this rule should be consistent with the remedial powers under the Charter. Therefore, the remedial powers of certiorari should be expanded to include the remedies that are available through s. 24(1) of the Charter. (Emphasis in the original.) [18] In my view, Dagenais does not support the expansion of remedial powers sought in the present case. As can be seen from the quoted passage, Lamer C.J.C. explicitly limited the enlargement of remedial powers to the situation before him. Moreover, the expansion of remedial powers in Dagenais was supported by invocation of s. 24(1) of the Charter to fill a legislative and remedial gap in relation to publication bans and the review of such orders. [19] In the case at bar, no Charter right is engaged and there is no legislative or remedial gap. Parliament has clearly assigned jurisdiction to the preliminary inquiry judge in s. 548(1) of the Criminal Code to commit or discharge an accused. [20] Convenience does not permit us to ignore the scheme established by Parliament. Parliament has not provided for appeals or for appeal-like remedial powers in relation to the decisions of preliminary inquiry judges, nor has Parliament conferred any authority on superior court judges to commit an accused for trial following a preliminary inquiry. The superior court’s inherent remedial powers exercisable on certiorari must surely respect that statutory scheme. [21] Finally, I would point out that the Crown does have other remedies at its disposal in cases where committal is inevitable. Where the Crown wishes to assert that no result other than committal is legally possible, the traditional panoply of prerogative remedies provides an answer. An order of mandamus, requiring the preliminary inquiry judge to commit, is available to minimize unnecessary procedural wrangling or delay. In addition, as a last resort, the Attorney General has at his or her disposal the right to override a discharge by preferring a direct indictment pursuant to s. 577 of the Criminal Code. CONCLUSION [22] In my view, the appropriate order in this case was to quash the discharge and remit the matter to the preliminary inquiry judge for further consideration on the whole of the evidence. I would allow the appeal and vary the order accordingly. “Robert J. Sharpe J.A.” “I agree J.M. Simmons J.A. “I agree H.S. LaForme J.A.” RELEASED: March 30, 2005