Case Name:

[REDACTED]. v. [REDACTED]

Between

Her Majesty the Queen, Respondent, and

[REDACTED], Applicant

[REDACTED]

[REDACTED]

Court File No. [REDACTED]

Ontario Superior Court of Justice

Judge: [REDACTED]

Heard: [REDACTED].

Judgment: [REDACTED].

(27 paras.)

Application by [REDACTED] to quash his committal to trial on a charge of break and enter and commit theft. The only evidence relied upon by the Crown at the preliminary inquiry was a statement by [REDACTED]. [REDACTED] argued on appeal the judge erred in finding his statement voluntary and committing him to trial on the basis of the statement alone. He argued the judge's error was jurisdictional, as there was no other evidence upon which he could be committed to trial.

HELD: Application dismissed. The judge's finding that [REDACTED] statement was voluntary was an evidentiary ruling that did not go to jurisdiction. Evidentiary rulings at preliminary inquiries were beyond the reach of judicial review, whether or not they were correct.

Statutes, Regulations and Rules Cited:

Criminal Code, R.S.C. 1985, c. C-46, s. 348(1)(b), s. 548, s. 548(1)(a), s. 548(1)(b)

Counsel:

[REDACTED], for the Crown.

[REDACTED] for the Applicant.

REASONS FOR JUDGMENT

1 Judge: [REDACTED]:-- On October 5, 2011, the Applicant Alykhan [REDACTED] was committed to trial on the following charge:

That he, on or about the 31st day of January, 2009, at the City of Mississauga in the Central West Region, did break and enter a certain place; to wit: a building, Randmar, situated at 1297 Kamato Road, Mississauga and did commit therein the indictable offence of theft, contrary to section 348(1)(b) of the Criminal Code of Canada.

2 [REDACTED], in this application, seeks to quash the committal on the following grounds:

(a) The preliminary hearing justice erred in ruling that the statement made by [REDACTED] was voluntary;

(b) In the absence of any other evidence, the preliminary hearing justice exceeded his jurisdiction in committing [REDACTED] to stand trial.

Position of the Respondent Crown

3 The Crown submits firstly that the ruling, following a voir dire, that the statement given to the police by [REDACTED] was voluntary, is an evidentiary ruling that does not go to jurisdiction. The Crown argues that evidentiary rulings made at a preliminary inquiry are beyond the reach of judicial review, whether the ruling is right or wrong.

4 The Crown submits further that, in any event, the ruling on the voir dire to admit the statement was correct in law and the justice did not commit palpable and overriding error.

Issue: Whether the ruling to admit the statement is an evidentiary ruling that does not go to jurisdiction

SUMMARY OF THE STATEMENT OF FACTS:

5 [REDACTED] is charged with Break, Enter and Theft contrary to section 348(1)(b) of the Criminal Code of Canada.

6 The alleged location of the offence is a commercial warehouse building located in Mississauga, Ontario. The alleged offence date is January 31, 2009.

7 Following a lengthy preliminary inquiry before the Honourable Justice Schwarzl of the Ontario Court of Justice at Brampton, [REDACTED] was committed to stand trial on October 5, 2011.

8 The Crown's case at the preliminary hearing consisted solely of a statement made by [REDACTED]. Following a voir dire to determine the voluntariness of the statement, Justice Schwarzl ruled that the statement was voluntary.

9 [REDACTED] argues that the preliminary inquiry judge erred in finding that [REDACTED] statement was voluntary and in admitting the statement [REDACTED] asserts that the error of law took on a jurisdictional dimension because it was the only evidence upon which [REDACTED] was committed to stand trial. The error in law caused or amounted to an error in jurisdiction.

Analysis and Review of Authorities

10 In R. v. Foster, 2008 CanLII 8419 (Ont. S.C.J.) Judge: [REDACTED]. set out the following at para. 31 with respect to the role of the reviewing Court. Justice Hill's summary of the legal principles is informative:

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 2004 SCC 76 (CanLII), (2005), 196 C.C.C. (3d) 1 (S.C.C.) at 10; R. v. Russell 2001 SCC 53 (ON C.A.), (2001), 157 C.C.C. (3d) 1 (S.C.C.) at 10, 13; R. v. Dubois (1986), 25 C.C.C. (3d) 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 properly instructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon 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.) at para. 12-13.

(iii) Supervisory review is not permitted to overturn a committal decision merely because the preliminary inquiry judge "reached a conclusion 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 of law) acting within its jurisdiction, and recognizing that there exists no closed list of jurisdictional errors, the following constitute such errors:

(a) committal where no evidence exists on an essential element of the crime charged (R. v. Skogman 1984 CanLII 22 (S.C.C.), (1984), 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 is some, as opposed to no, evidence: R. v. Deschamplain, at 11, 14-6; R. v. Sazant 2004 SCC 77 (CanLII), (2004), 208 C.C.C. (3d) 225 (S.C.C.) at 233-5; R. v. Thomson 2005 CanLII 8664 (ON C.A.), (2005), 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 CanLII 15 (S.C.C.), (1980), 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, [2002] O.J. No. 2340 (C.A.) at para. 4; R. v. Campbell 1999 CanLII 2372 (ON C.A.), (1999), 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 of the 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.

TEST FOR CERTIORARI

11 The test for certiorari has been set out in numerous cases. The test is whether there was any evidence upon which the committing justice could have formed the opinion that the evidence was sufficient for the accused to stand trial. The reviewing court does not determine whether a properly instructed jury could convict, but whether there was any evidence before the committing justice upon which the justice could form the opinion that the evidence is sufficient to put the accused on trial. The reviewing court does not substitute its opinion of the evidence for that of the preliminary inquiry justice.

12 In R. v. Russell, [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 extensive review, 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, [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 tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review "only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction": Skogman, supra, at p. 100 (citing Forsythe v. The Queen, [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 remedies is clear. While the preliminary inquiry also affords defence counsel the opportunity to assess the nature and strength of the case against his 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 Upper Canada (1955), p. 1); Dubois v. The Queen, [1986] 1 S.C.R. 366, at pp. 373-74. Critically, the preliminary inquiry is not meant to determine the accused's guilt or innocence. That determination is made at trial. The preliminary inquiry serves a screening purpose, and it is not meant to provide a forum for litigating the merits of the case against the accused. The limited scope of supervisory remedies reflects the limited purpose of the preliminary inquiry.

13 In R. v. Mullings, 2005 CanLII 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 to apply 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 jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting 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 committing justice found a reasonable jury could draw were inferences, as the Crown contends, or were based on speculation and conjecture from equivocal or no evidence, as the defence argues. In R. v. Latif, [2004] O.J. No. 5891, (unreported judgment dated October 14, 2004)(S.C.J.) Cunningham A.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 is deduced as a logical sequence from other facts or a state of facts already proven or admitted". Speculation, is forming a theory or conjecture without factual basis: Oxford Concise Dictionary.

14 The scope of review was articulated in R. v. Martin, 2001 CanLII 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 a preliminary inquiry judge in determining whether the evidence is sufficient for the purpose of a committal for trial is whether there is any evidence upon which a properly instructed jury, acting reasonably, could find guilt. It is well settled that 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. See also R. v. Russell, 2001 SCC 53, where the Supreme Court of Canada reaffirmed the limited scope of review on certiorari to review committals for trial and reiterated that a preliminary inquiry judge's determination of the sufficiency of evidence is 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 the committal.

15 In R. v. Eickmeier, 2007 CanLII 18024 (Ont. S.C.), Quinn J. reiterated these principles at paras. 16 to 23:

not an appeal

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 tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached": see R. v. Russell, [2001] 2 S.C.R. 804 at para. [19], citing R. v. Skogman,, [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), 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 where there 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 justice to 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 and Desjardins v. The Queen (1977), 41 C.C.C. (2d) 308 (Ont. C.A.); aff'd, [1978] 2 S.C.R. 511; and R. v. Sequin (1982), 31 C.R. (3d) 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 of whether there was 'sufficient evidence' to commit, his decision is not subject to review": see R. v. Skogman, , [1984] 2 S.C.R. 93 (S.C.C.) at para. 169.

EVIDENTIARY RULINGS AND JURISDICTION

16 In R. v. Gallant, [2009] N.B.J. No. 409 (N.B.C.A.) the Court thoroughly reviews the jurisprudence on this issue. It is important to set out that review in detail. At paragraphs 43 to 53 the court sets out the following:

The appellants concede that errors of law do not constitute jurisdictional error and that an error with respect to the application of the rules of evidence is an error of law. They insist, however, that a court would lose jurisdiction where the exclusion of the evidence admitted pursuant to an error of law would have resulted in "no evidence" on an essential ingredient of the offence charged. Thus, they argue that if the contents of the intercepted private communications had been excluded, there would have been no evidence on essential ingredients of the offences charged and the justice at the preliminary inquiry would have discharged them. In support of their proposition, they rely on R. v. Blizzard (W.A.) et al. (2004), 284 N.B.R. (2d) 131, [2004] N.B.J. No. 529 (QL), 2005 NBQB 67, where Glennie J., relying on R. v. Wilson (1995), 139 N.S.R. (2d) 61 (C.A.), [1995] N.S.J. No. 109 (QL), stated that "a court does lose jurisdiction where the exclusion of [...] evidence would have resulted in 'no evidence' on which the justice could have formed the opinion that the evidence was sufficient to put the accused on trial." A detailed analysis of Wilson, however, qualifies that proposition.

In Wilson, an accused "was committed for trial on three counts of sexual abuse of a nine-year-old boy, solely on the evidence of the child who could communicate the evidence but who did not understand the nature of an oath or affirmation and who had not promised to tell the truth as required by s. 16(3) of the Canada Evidence Act" (para. 1). Freeman J.A., for the majority, started from the proposition in Skogman that "[...]'no evidence' on an essential element of the charge against the accused cannot amount to 'sufficient evidence' [...]" to commit to trial (para. 4). He noted that s. 540(1) required the justice at the preliminary inquiry to take the evidence under oath, as that term is to be interpreted by the provisions of the Canada Evidence Act, R.S.C. 1985, c. C-5, and held that the failure to take the evidence in that fashion was a jurisdictional error because there was a failure to follow a mandatory provision of the Criminal Code. In reaching that conclusion, Freeman J.A. recognized that "[r]ulings as to the admissibility of the evidence of a qualified witness, however erroneous, do not deprive the judge of jurisdiction" (para. 6) and relied on the Supreme Court of Canada decisions in Quebec (Attorney General) v. Cohen, [1979] 2 S.C.R. 305, [1979] S.C.J. No. 50 (QL), Forsythe, and Dubois v. The Queen, [1986] 1 S.C.R. 366, [1986] S.C.J. No. 21 (QL), in support of that statement. The key to the majority decision in Wilson is the fact that the Criminal Code provisions governing preliminary inquiries mandated that the evidence be taken under oath (as that term was to be understood in accordance with the Canada Evidence Act). The jurisdictional error was the justice's failure to observe this mandatory provision that governed preliminary inquiries. Because the evidence had not been taken in compliance with the Canada Evidence Act, "the evidence [was] not before the court" (para. 21) and therefore there was no evidence on essential ingredients of the charge and there could be no committal to trial. In concluding as they did, the majority of the Nova Scotia Court of Appeal declined to follow R. v. Gray (1991), 6 O.R. (3d) 73 (Gen. Div.), [1991] O.J. No. 2013 (QL), where, in a somewhat similar situation, Watt J. (as he then was) held that the decision to permit the complainant to testify was a decision concerning the admissibility of evidence and that such decisions, "even if erroneous, do not affect jurisdiction" (at p. 86). He explained as follows:

It is the duty of the justice presiding at a preliminary inquiry to decide whether evidence proposed for admission may be received. Put another way, the presiding justice has authority or jurisdiction to determine such issues. Whilst it may fairly be said that Charter infringement may not be invoked as a basis for evidentiary exclusion at the preliminary inquiry, and further that, in the name of "discovery" or "disclosure", much may be received at the inquiry that a strict application of the rules of evidence would exclude, it cannot be disputed that it falls within the jurisdiction of the presiding justice to resolve admissibility issues, hence to determine whether evidence is receivable. It matters not to jurisdiction that the objection to admission is based upon an allegation of testimonial incompetence, a breach of an exclusionary canon of the law of evidence, or non-compliance with a statutory enactment governing the reception of the evidence proposed for admission.

It has been authoritatively held that decisions concerning the admissibility of evidence at a preliminary inquiry, even if erroneous, do not affect jurisdiction. The rule is shortly stated in Quebec (Attorney General) v. Cohen, [1979] 2 S.C.R. 305, 46 C.C.C. (2d) 473, where Pigeon J., for the court, said, at p. 310 S.C.R., p. 477 C.C.C.:

In my view, there are cogent reasons for not departing from the rule that against a magistrate holding a preliminary inquiry certiorari lies only for lack of jurisdiction and a decision concerning the admissibility of evidence, even if erroneous, does not affect jurisdiction. In view of this conclusion, I do not consider it expedient to express any opinion as to the merits of the objection sustained by the Magistrate.

See also R. v. Duhamel, [1984] 2 S.C.R. 555, 15 C.C.C. (3d) 491; R. v. Skogman, [1984], 2 S.C.R. 93, 41 C.R. (3d) 1; R. v. Forsythe, [1980] 2 S.C.R. 268, 53 C.C.C. (2d) 225; and, R. v. Patterson, [1970] S.C.R. 409, 2 C.C.C. (2d) 227. As it would appear to me, there is no reason in principle why a ruling concerning the manner in which a witness under the age of 14 years shall testify, if at all, should take on a jurisdictional hue when other rulings "concerning the admissibility of evidence", including what may be said or how a witness may be cross-examined, display no such complexion or character. [pp. 85-86]

In Wilson, Chipman J.A. dissented. While he acknowledged the justice holding the preliminary inquiry had erred in not complying with the Canada Evidence Act, he found this error to be one "relating to procedure of admissibility" (para. 37). He reached this conclusion by relying on the statement in Quebec (Attorney General) v. Cohen, quoted above, and on a further statement in Forsythe where the Supreme Court stated that rulings on proffered evidence would not amount to jurisdictional error and specifically confirmed that "a ruling on the admissibility of evidence, even if erroneous did not go to jurisdiction" (para. 44). He also relied on R. v. Norgren (1975), 27 C.C.C. (2d) 488 (B.C.C.A.), [1975] B.C.J. No. 121 (QL), where the Court held that certiorari did not lie where a judge ruled admissible the confession of an accused on the basis that it was "probably voluntary" as opposed to requiring proof of voluntariness beyond a reasonable doubt. Chipman J.A. expressly agreed with the conclusions Watt J. had reached in Gray.

In my respectful view, the majority decision in Wilson stands for this proposition: if a justice at a preliminary inquiry fails to observe a mandatory provision of the Criminal Code regarding the conduct of the preliminary inquiry, such as the requirement to take evidence under oath (or in accordance with the provisions of the Canada Evidence Act), the judge commits jurisdictional error. I do not read the majority decision as saying anything else and in particular, I do not see it as a basis to open to judicial review evidentiary rulings made in the course of the preliminary inquiry on the grounds that the evidence was the sole evidence on an essential ingredient.

I am not the first to ascribe this meaning to the majority decision in Wilson. In R. v. Nitsiza, [2001] N.W.T.J. No. 33 (QL), 2001 NWTSC 34, Vertes J. appears to have reached this same conclusion, and in R. v. Auger, [2001] N.W.T.J. No. 28 (QL), 2001 NWTSC 30, Schuler J. certainly did. Faced with the same argument as advanced in the present case, that "where the preliminary inquiry Judge errs in the admission of evidence which is the only evidence against the accused, the resulting committal for trial may be reviewed and quashed" (para. 19), Schuler J. was required to analyze Wilson. She explained her understanding of the majority decision as follows:

I understand Wilson to be a case where failure to comply with a statutory requirement resulted in the preliminary inquiry judge's loss of jurisdiction. Because the child's evidence was the only evidence inculpating the accused, the committal could not stand. The case did not involve the admissibility of evidence, but rather the qualification of the witness to give any evidence at all. [para. 20]

Schuler J. reviewed other decisions that were said to stand for the proposition that "if the result of an error as to admissibility of evidence is that there is 'no evidence', then the preliminary inquiry judge loses jurisdiction if he or she commits for trial on that evidence" (para. 22) and found that that there was no real authority for such a proposition. I agree with her. With one proviso, I particularly agree with her statement that where an error is "one in the application of legal principles or rules of evidence, and there is no failure to comply with a statutory provision, the preliminary inquiry judge acts within his or her jurisdiction and the error does not result in loss of that jurisdiction, even if the evidence in question is the only evidence in the case, as it was in Norgren" (para. 25). The proviso is that not all failures to comply with a statutory provision will necessarily lead to loss of jurisdiction. In my view, where there are conflicting statutory obligations regarding evidentiary matters that must be resolved by the exercise of the judgment of the justice presiding at the preliminary inquiry, as in the present case, the justice acts within the exercise of his or her jurisdiction in resolving the conflict.

From my review of the cases cited to us, it is apparent that where failure to comply with a mandatory statutory provision resulted in a preliminary inquiry justice losing jurisdiction, the provisions in issue were procedurally relevant to the justice's ultimate determination. None of the decisions involved an evidentiary ruling. For example, in Wilson, it was the provision that required the justice holding a preliminary inquiry to take the evidence under oath; in Doyle, [1977] 1 S.C.R. 597, it was the failure to put the appellant to his election; and, in Deschamplain and in Sazant, it was the failure to consider the whole of the evidence as prescribed in s. 548(1). In Forsythe, Laskin C.J. stated that rulings on proffered evidence would not, in his view, "amount to jurisdictional error". He added: "[h]owever, the judge or magistrate who presides at a preliminary inquiry has the obligation to obey the jurisdictional prescriptions of s. 475 of the Criminal Code" (p. 272), which is the provision that governs the adjudication of a preliminary inquiry. The same was emphasized in Dubois, where Estey J. stated:

[T]he reason underlying the court's restriction of supervisory remedies is equally valid in both cases. It has been said numerous times that the objective of holding a preliminary inquiry is merely to determine whether there is enough evidence against the accused to justify ordering him to stand trial. It is not intended to determine, finally or otherwise, the accused's guilt or innocence. Therefore, it is inappropriate to allow the expansion of supervisory remedies designed to correct errors of law made in the course of preliminary inquiries which relate, for example, to the admission of evidence, the questioning of witnesses, or the production of documents. A preliminary hearing "is not a trial and should not be allowed to become a trial" (Patterson, supra, per Judson J. at p. 412; see also Cohen, supra, per Pigeon J. at p. 309). The questioning of errors of law is therefore as inappropriate in proceedings to quash a discharge as it is in proceedings to quash a committal. Errors which go to the preliminary hearing judge's jurisdiction are, however, different. Superior courts, from the earliest days in our law, have exercised their inherent authority to enforce compliance with the law by lower tribunals which must exercise fully without exceeding their statutory jurisdiction. Such is the position of a preliminary hearing tribunal. [pp. 373-374]

[Emphasis added]

In the present case, the justice at the preliminary inquiry was faced with conflicting statutory provisions regarding the admission of the intercepted communications. On the one hand, s. 189(5) prohibited the admission of this evidence unless the prescriptions of that provision had been met, while, on the other hand, the justice was authorized to "receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case" (s. 540(7)). The question is this: who, at the preliminary inquiry, had the jurisdiction to resolve this apparent conflict between s. 189(5) and s. 540(7)? The answer is as clear as it is simple: the presiding justice, of course. How can it be said that, in resolving an evidentiary issue that only he could be called upon to resolve, the justice committed jurisdictional error? In my view, it cannot. The determination of whether or not the intercepted private communications could be admitted in evidence as credible or trustworthy evidence that would not otherwise be admissible was one to be made within the scope of the jurisdiction of the justice presiding at the preliminary inquiry. It is an evidentiary ruling and does not go to jurisdiction. Evidentiary rulings made at a preliminary inquiry are beyond the reach of judicial review, whether the ruling is right or wrong.

Thus, I would answer the fundamental question I identified in the first paragraphs of these reasons in the negative. A justice, at a preliminary inquiry, who receives evidence, in respect of which the notice required under s. 189(5) might not have been given, does not commit a jurisdictional error. His decision on that point is therefore not subject to attack by certiorari.

The appellants also argue that the application judge erred in refusing the order of certiorari on the grounds that: (1) the notice the prosecution had given under s. 540(8) was insufficient; and, (2) there had been no threshold determination that the evidence was credible and trustworthy as required by s. 540(7). The answer to this argument is simple. Section 540(8) provides that before evidence may be admitted under s. 540(7), reasonable notice must be given, unless the justice orders otherwise. The determination of what constitutes reasonable notice is left to the judgment of the presiding justice as is the discretion to order the evidence be admitted without the required notice. Thus, a justice making a determination of reasonable notice or ordering that evidence be admitted without the required notice cannot be said to act outside the scope of his or her jurisdiction. Again, this is an evidentiary ruling within the course of the exercise of the justice's proper jurisdiction, one that is not open to review on application for certiorari. As for s. 540(7), it vests in the justice the discretion to admit evidence he or she considers credible or trustworthy in the circumstances of the case. Again, it is the justice presiding at the preliminary inquiry who has the authority to make that determination. The justice's judgment in this respect is exercised within the jurisdiction the Criminal Code confers upon him or her and a decision on that point is not open to judicial review.

In summary, I am of the view that the decision challenged by way of certiorari was an evidentiary ruling that is insulated from judicial review. It was a ruling the justice made in the course of exercising the powers conferred upon him by the Criminal Code, thus made within 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. For that reason, I would dismiss this ground of appeal.

17 [REDACTED] agrees and acknowledges that Gallant is on all fours with the case at bar, however, he urges the Court not to follow the decision as it was wrongly decided.

18 [REDACTED] argues that because the statement is the only evidence and since it was wrongly admitted, there was no other evidence for the justice to consider. The justice, therefore, committed jurisdictional error by committing [REDACTED] under Section 548 of the Criminal Code.

19 Section 548(1)(a)(b) of the Criminal Code states:

548. (1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

20 [REDACTED] relies on Wilson & Blizzard to support his position, however, the Court in Gallant deals with both cases and set out reasons why those cases are distinguishable from the Gallant case. That reasoning applies to the case at bar as well. [REDACTED] position is not supported by the jurisprudence on the issue.

21 In R. v. Norgren 27 C.C.C. (2d) 488 (B.C.C.A.) the Court stated at paras. 4 to 8:

In my view, despite the careful argument of counsel for the respondent, this case can be boiled down to a very simple proposition. The learned provincial court judge had jurisdiction to embark upon the preliminary hearing. Central to the exercise of that jurisdiction was the responsibility to determine the admissibility of evidence tendered by the parties. The confession referred to was the sole evidence against the respondent. It is now said, as it was said below, that the judge applied the wrong test in considering the admissibility of this evidence and that certiorari should lie.

As I have said, the judge below acceded to that argument and ordered the writ.

If error was made in the admission of this evidence, and for the purpose of this argument and for the purpose of this judgment I am prepared to assume that error was made in the admission of the evidence, such an error was at most an error in the exercise of the jurisdiction properly possessed by the provincial court judge, and it does not go to or affect his jurisdiction. By making such an error he did not lose his jurisdiction or exceed it -- and certiorari will not lie to review his decision.

I base this judgment upon the case of Regina v. Patterson in the Supreme Court of Canada (1970) 2 C.C.C. (2d) 237; Regina v. Botting [1966] 3 C.C.C. 373, in the Court of Appeal of Ontario; and refer in passing as well to the case of Regina v. Norfolk Quarter Sessions, ex p. Brunson (1953) 37 Criminal Appeal Reports at page 6.

I have on a consideration of the many other authorities cited by counsel for the respondent been unable to find anything in them inconsistent with the principles enunciated in the cases I have cited above. In fact there is much in the other authorities which were cited by the respondent to support the principles upon which I am acting in this matter.

22 In R. v. V.D., [1999] O.J. No. 4922 (Ont. C.A.) Rosenberg, J.A. speaking for the majority stated the following at paras. 35-36:

The decision of the Supreme Court of Canada in A.-G. Que. v. Cohen (1979), 46 C.C.C. (2d) 473 is helpful in distinguishing jurisdictional and non-jurisdictional error. In that case, Pigeon J. speaking for the court at p. 476 referred with approval to the decision of McIntyre, J.A. in R. v. Norgren (1975), 27 C.C.C. (2d) 488 (B.C.C.A.) at 489-90:

The learned Provincial Court Judge had jurisdiction to embark upon the preliminary hearing. Central to the exercise of that jurisdiction was the responsibility to determine the admissibility of evidence tendered by the parties. The confession referred to was the sole evidence against the respondent. It is now said, as it was said below, that the Judge applied the wrong test in considering the admissibility of this evidence and that certiorari should lie.

As I have said, the Judge below acceded to that argument and ordered the writ.

If error was made in the admission of this evidence, and for the purpose of this argument and for the purpose of this judgment I am prepared to assume that error was made in the admission of the evidence, such an error was at most an error in the exercise of the jurisdiction properly possessed by the Provincial Court Judge, and it does not go to or affect his jurisdiction. By making such an error he did not lose his jurisdiction or exceed it -- and certiorari will not lie to review his decision. [Emphasis added.]

To a similar effect is the decision of the Supreme Court of Canada in Dubois v. The Queen, [1986] 1 S.C.R. 366. In Dubois, the court held that the same limits on the power to review apply whether it is the Crown or the accused that seeks to challenge a ruling at a preliminary inquiry. The superior court may review only for jurisdictional error and not simply errors of law on the face of the record. Estey J., speaking for the court, held as follows at pp. 373-374:

It has been said numerous times that the objective of holding a preliminary inquiry is merely to determine whether there is enough evidence against the accused to justify ordering him to stand trial. It is not intended to determine, finally or otherwise, the accused's guilt or innocence. Therefore, it is inappropriate to allow the expansion of supervisory remedies designed to correct errors of law made in the course of preliminary inquiries which relate, for example, to the admission of evidence, the questioning of witnesses, or the production of documents. [Emphasis added.]

23 In R. v. Janda, [2003] O.J. No. 326 (S.C.O.) A. Campbell J. set out the following at paras. 17 to 19:

The only errors that affect a committal are errors that go to jurisdiction. An error of law does not deprive the court of jurisdiction. R. v. Russell (2001), 157 C.C.C. (3d) 1 per McLachlin C.J. at para. 19:

... review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law ...

An error in the admission of evidence does not infect the preliminary hearing with jurisdictional error. R. v. Forsythe (1990), 53 C.C.C. (2d) 225 per Laskin C.J. at p. 229, referring to A.-G. Que. v. Cohen (1979), 46 C.C.C. (2d) 473:

An order to quash was denied on the ground that a ruling on the admissibility of evidence, even if erroneous, did not go to jurisdiction. There can be no gainsaying the correctness of this conclusion.

The many authorities on this point are summed up by Watt J. in Re Gray & The Queen (1991), 68 C.C.C. (3d) 193 at p. 205:

It has been authoritatively held that decisions concerning the admissibility of evidence at a preliminary inquiry, even if erroneous, do not affect jurisdiction.

24 [REDACTED] relies heavily on the decision in R. v. Deschamplain, [2004] S.C.J. No. 73 (S.C.C.) in his submissions in that many of the cases filed and referred to pre-date the 2004 decision in Deschamplain. [REDACTED] points to para. 12 which states:

There is no dispute that the jurisdiction of a preliminary inquiry judge is statutory and not inherent. In Forsythe v. The Queen, [1980] 2 S.C.R. 268, Laskin C.J. acknowledged that there are few situations in which a preliminary inquiry judge can lose jurisdiction, but noted, at pp. 271-72, that "jurisdiction will be lost by a magistrate who fails to observe a mandatory provision of the Criminal Code". He went on to say that the judge presiding at a preliminary inquiry "has the obligation to obey the jurisdictional prescriptions of s. 475 [now s. 548] of the Criminal Code.

25 However, as the Crown pointed out in her submissions, the principles set out in Deschamplain are consistent with the jurisprudence on the issue of jurisdiction and evidentiary rulings. At paras. 17 and 18 the Court states:

The respondent questions why the failure of a preliminary hearing judge to consider evidence tendered by the Crown amounts to jurisdictional error, but the erroneous exclusion of evidence at the preliminary hearing does not. The answer is not elusive. The preliminary inquiry judge has jurisdiction to conduct the inquiry according to the rules of evidence. Any error with respect to the application of those rules that does not rise to the level of a denial of natural justice (which also goes to jurisdiction: see Dubois, supra, at p. 377; Forsythe, supra, at p. 272) constitutes an error of law, not a jurisdictional error. Errors of law are not reviewable by way of certiorari.

Section 548(1)(b) requires the preliminary inquiry judge to consider "the whole of the evidence" that "has been taken" during the preliminary inquiry. The primary purpose of a preliminary inquiry is to "ascertain whether there is sufficient evidence to warrant committing the accused to trial": R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 20. It follows that Parliament never intended to allow decisions on the discharge of an accused to be made without full regard to all of the evidence. In my view, it is a jurisdictional error for a preliminary inquiry judge to fail to consider the "whole of the evidence" as required under s. 548(1)(b), and the Ontario Court of Appeal erred in concluding otherwise.

CONCLUSION

26 The preliminary inquiry justice was tasked to determine the voluntariness of a statement. Following a voir dire as to the admissibility of the statement, the justice ruled that the Crown had proven the voluntariness of the statement beyond a reasonable doubt. This ruling was made within the scope of his jurisdiction presiding at the preliminary inquiry. I agree with the legal principles enunciated in Gallant and in the Court's thorough review of the relevant caselaw on the issue. This was an evidentiary ruling that does not go to jurisdiction. Evidentiary rulings made at a preliminary inquiry are beyond the reach of judicial review, whether the ruling is right or wrong (Gallant at para. 50).

27 [REDACTED] application for certiorari is dismissed. The preliminary inquiry justice did not fall into jurisdictional error.

Judge: [REDACTED]

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