Preliminary Inquiry | crimdefencetoronto

Test for Committal

The test for committal is whether there is any evidence on which a reasonable jury properly instructed could return a guilty verdict: R v Wilson, 2016 ONCA 235 at para 21

The test is the same whether the evidence is direct or circumstantial. However, with circumstantial evidence, the question becomes whether the elements of the offence to which the Crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence: Wilson at para 22

In a case involving ircumstantial evidence, the preliminary inquiry judge must engage in a limited weighing of the evidence to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw: Wilson at para 23

In this analysis, the prelininary inquiry judge does not draw factual inferences, assess credibility, or consider the inherent reliability of evidence: Wilson at para 23; R v Kamermans, 2016 ONCA 117 at para 15

Any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the prosecution’s favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: To weigh competing inferences is to usurp the function of the trier of fact: Wilson at para 24

An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture: Wilson at para 30 [citation ommitted]

Application for Certiorari

Certiorari is available to quash both committals and discharges ordered at the conclusion of a preliminary inquiry. The scope of review is limited to jurisdictional errors: R v Kamermans, 2016 ONCA 117 at para 13; R v Wilson, 2016 ONCA 235 at para 25

The reviewing court must afford substantial deference to the preliminary inquiry judge, and cannot query whether it would have arrived at a different conclusion than that of the preliminary inquiry judge: Wilson at paras 27-28

Where there is a scintilla of evidence upon which the preliminary inquiry judge could conclude that the test is satisfied, a reviewing court should not intervene to quash the committal: Wilson at para 26 [citation ommitted]

the preliminary inquiry judge has failed to test the whole of the evidence adduced at the inquiry against the essential elements of the offences charged – which essential elements must accurately reflect the legal requirements Parliament as prescribed
- A preliminary inquiry judge commits a jurisdictional error by committing an accused when an essential element of the offence is unsupported by the evidence:
the preliminary inquiry judge preferred an inference favourable to an accused to an inference, also available on the evidence, favourable to the Crown
- Whether an inference is easy, hard or difficult to draw is of no moment to a decision on committal.
the preliminary inquiry judge has failed to consider “the whole of the evidence” adduced at the inquiry in reaching his or her conclusion about committal or discharge