The accused was committed to stand trial for possessing a controlled substance (fentanyl) for the purpose of trafficking. Defence counsel brought forth an application for certiorari to quash the committal to stand trial. The defence's application was rejected.
R. v. [Redacted]
Ontario Superior Court of Justice
Heard: June 3, 2021 by videoconference.
Judgment: September 8, 2021.
Court File No.: [Redacted]
 O.J. No. [Redacted] | 2021 ONSC [Redacted]
Between Her Majesty the Queen, Respondent, and [Redacted], Defendant/Applicant
[Redacted], for the Crown.
[Redacted], for the [Redacted].
REASONS FOR DECISION
- [Redacted] brings this application for certiorari seeking to quash his committal for trial on a charge of possession of fentanyl for the purpose of trafficking. This charge was one of a myriad of charges laid against multiple individuals after a large criminal investigation known as Project [Redacted]. The charge involving [Redacted] proceeded to a preliminary hearing along with seven other accused persons, continuing for ten days before the [Redacted] in the Ontario Court of Justice. [Redacted] delivered judgment on November 20, 2020, committing all of the accused to trial on all 39 charges before him.
- [Redacted] was arrested in [Redacted] on June 23, 2019 when the car in which he was a passenger was stopped by the police. [Redacted]'s co-accused on this charge, [Redacted], was driving the car at the time and [Redacted] was in the front passenger seat. The car, a silver Toyota Yaris, was owned by [Redacted]'s father. In the trunk of the car was a backpack containing two packages of fentanyl wrapped in foil, weighing approximately four ounces each.
- There was no direct evidence at the hearing that [Redacted] had knowledge or control of the fentanyl. The case against him turns on what inferences can be drawn from the evidence, much of which consists of intercepted cellphone communications.
- [Redacted] raises two issues. First, he submits that the hearing judge improperly admitted hearsay evidence from which he drew inferences favourable to the Crown's case and which should not have been considered. Second, he argues that there were many inferences that could be drawn from the evidence, some of which were inconsistent with his guilt. A properly instructed jury could not draw an inference of guilt in such circumstances. Therefore, he submits that the test for committal cannot be met and the committal should be quashed.
- For the reasons set out below, I reject both arguments. The admissibility of evidence is a question of law and is not a reviewable error on certiorari. With respect to the drawing of inferences, the applicant's argument has some logical resonance. However, the Ontario Court of Appeal has been clear that this type of weighing of evidence is not permissible at a preliminary hearing, nor on a motion such as this one to quash a committal.
- I heard this application together with that of one of the other individuals on the indictment, [Redacted], but have delivered separate reasons for my decision in that case.
B. THE FACTS
- The Crown alleges that [Redacted] was part of a group transporting drugs from the Toronto area to [Redacted]. For purposes of the preliminary hearing, the details of the larger scheme were not in contention. The sole issue was where there was any evidence that [Redacted] had knowledge and control of the fentanyl in the trunk of the car.
- Much of the evidence came from wiretaps. Those revealed that between June 17, 2019 and June 23, 2019 several of the co-accused (specifically, [Redacted]) had conversations about drugs being delivered from Toronto to [Redacted] in [Redacted]. [Redacted] is alleged to be the drug supplier. [Redacted] told both [Redacted] and [Redacted] that he was sending "four" to each of them. At 2:40 p.m. on June 23, 2019, [Redacted] told an unnamed caller that his runner had left the [Redacted] and was on his way. At 3:00, [Redacted] told [Redacted] that his "boy" was going to be at the shopping mall soon. He also talked about having just communicated with the "youths" on Facetime. Shortly after that, [Redacted] told both [Redacted] "he coming by" and [Redacted] "he's on da way." [Redacted] provided the [Redacted] address.
- While [Redacted], [Redacted], and [Redacted] were in communication, police surveillance teams were in place at the [Redacted] and observed [Redacted] arrive in a Volkswagon Jetta. A surveillance officer saw [Redacted] get out of the driver seat of a silver Toyota Yaris and get into the front passenger seat of [Redacted] 's Jetta. [Redacted] was there a short period of time, then exited. He appeared to be holding something in his right hand, which he then placed in his pocket. [Redacted] returned to the Yaris, again getting into the driver's seat. [Redacted] drove out of the parking lot. The officer then lost sight of [Redacted] for a short period of time because his view was blocked. When he regained visual observation, [Redacted] was outside the Yaris and getting into the driver's seat again. Throughout this time, [Redacted] was seated in the front passenger seat.
- The car was owned by [Redacted]'s father.
- The Yaris left the [Redacted] with [Redacted] at the wheel and went directly to [Redacted]. It was under constant surveillance during this trip and made no stops. At 7:04 p.m., as the Yaris entered [Redacted], the police stopped the car. At first, [Redacted] tried to evade the police by aggressive driving. This was not successful, and the car eventually stopped and rolled into a shallow ditch. [Redacted] then got out of the driver's side and attempted to flee on foot. He was apprehended by police and appeared to them to be nervous. He made a number of unsolicited utterances supporting an inference that he knew there were drugs in the car: "that's not my car, I'm only the driver;" "if there are drugs in the car do I get charged;" and, asking if he would get bail.
- [Redacted] remained in the front passenger seat until he was arrested.
- In the trunk of the Yaris, police found a backpack containing two foil packages of fentanyl, each weighing approximately four ounces. This evidence supports an inference that these are the drugs [Redacted] was supplying to [Redacted] and [Redacted].
- Ten minutes after police stopped the Yaris, [Redacted] called [Redacted] and said "these guys" were not answering calls. Minutes later, they had another discussion about it. [Redacted] told [Redacted] that it was "two [Redacted] guys in a silver Toyota." [Redacted] is [Redacted]; [Redacted] was described by the surveillance officer as being [Redacted] in appearance. In a later discussion, [Redacted] and [Redacted] again expressed concern about the delay with the Toyota. [Redacted] said he would go to the courthouse the next day to see what he could find out. [Redacted] told him that one of the guys in the car was named [Redacted].
- [Redacted] was one of the officers involved in the search of the Toyota Yaris at the roadside following the arrest of [Redacted] and [Redacted]. [Redacted] testified that he found two cellphones in the front seat: a black iPhone in a black Otterbox case that was on the front passenger seat and plugged into the charging outlet; and a grey iPhone in a clear gold-patterned case that was on the floor in front of the front passenger seat. He turned the phones over to [Redacted].
- [Redacted] confirmed receiving the iPhones from [Redacted]. [Redacted] testified that he had been informed by [Redacted] that the GPS App on the black iPhone had been opened with an estimated arrival of 7:59 at the address of [Redacted]. This phone was located on the seat where [Redacted] had previously been sitting and showed the address provided by [Redacted] for the delivery of the drugs.
C. THE DECISION OF THE HEARING JUDGE
- The preliminary hearing judge held that "the combined effect of the intercepts" and the surveillance at the [Redacted] "are consistent with a reasonable inference that [Redacted] attempted to resupply drugs to [Redacted] and [Redacted] for their local trafficking operations" in [Redacted] with the assistance of [Redacted], using [Redacted] and [Redacted] as couriers from [Redacted] to [Redacted]. Further, he held that the drugs found in the trunk of the Yaris "create a reasonable inference that the purpose of the meeting between [Redacted] and [Redacted] in [Redacted] was the transfer of the drugs discovered after the takedown." The hearing judge recognized that there were some weaknesses in the evidence and other possible inferences available but held that these "potential competing inferences must be evaluated by the jury."
- The hearing judge found ample evidence to support the inference that [Redacted] had knowledge and control of the fentanyl in the trunk of the car including his conduct at the [Redacted], his control of the vehicle carrying the drugs, his behaviour at the time of takedown, and his inculpatory remarks demonstrating his knowledge of the drugs.
- With respect to [Redacted], the hearing judge observed that "the evidence pointing to an inference that the passenger [Redacted] was a knowing participant in the drug delivery to [Redacted] might well be inadequate to ground committal except for the discovery of the black iPhone on his seat after the June 23, 2019 takedown." He noted that the active GPS App showed the delivery address for the drugs destined for [Redacted] and held that this was "some evidence that [Redacted] was not a mere passenger but rather a participant with knowledge of the destination and purpose of the journey." He held that the determination of that issue must be left with the jury.
D. THE TEST TO BE APPLIED
- This is not an appeal. The preliminary hearing judge is entitled to be wrong on questions of law. Certiorari is not available to review purported errors of law by the preliminary hearing judge. The only basis upon which this court can intervene is where the preliminary hearing court judge has lost jurisdiction. A preliminary hearing judge loses jurisdiction if he or she orders committal in the absence of any evidence upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt.
- The test to be applied for committal to trial is the same, whether the evidence is direct or circumstantial. Where there is no direct evidence of an essential element of an offence, the preliminary hearing judge must assess whether the circumstantial evidence is reasonably capable of supporting an inference of guilt. The inference consistent with guilt is not required to be the only inference, or even the most compelling one, but it is required to be a reasonable one that is rooted in the evidence, as opposed to being mere speculation. The Crown's case must be taken at its highest. Only inferences consistent with the Crown's case are permitted to be drawn.
E. HEARSAY EVIDENCE
- The applicant submits that the hearing judge erred in jurisdiction by admitting the hearsay evidence of [Redacted] about what was on the black iPhone, that testimony being based on what he was told by [Redacted] rather than what he observed himself. The applicant relies in that regard on Stillo v. R., a 1981 decision of the Ontario Court of Appeal.
- In Stillo the accused was charged with assaulting a child, a girl not quite eight years old at the time of the trial. Because the child did not understand the nature of an oath, her testimony at the preliminary hearing was received unsworn. There was no evidence corroborating her testimony about the assault. Notwithstanding the absence of corroboration, the preliminary hearing judge committed the accused for trial. The accused brought an application to quash his committal, which was dismissed by Cory J. (as he then was).
- The Evidence Act in force at the time of the Stillo case provided that if a child's evidence is unsworn, "no case shall be decided upon such evidence, and it must be corroborated by some other material evidence." Cory J. ruled that the acceptance by the preliminary hearing judge of the unsworn and uncorroborated evidence of a child was an error of law, not an error of jurisdiction, and accordingly immune from judicial review. On further appeal, the Court of Appeal disagreed, holding that the absence of corroboration as required by the Evidence Act meant that there was no evidence upon which a reasonable properly instructed jury could convict and that the preliminary hearing judge had therefore made an error going to jurisdiction.
- Before me, counsel for the applicant argued that the same principle should apply to inadmissible hearsay evidence. Since no properly instructed jury could rely on such evidence to convict, he submitted, this amounts to an error of jurisdiction.
- I disagree. The issue in Stillo was not whether the child's evidence was admissible. Rather, there was a statutory requirement that it be corroborated, such that corroborating evidence became an essential element or precondition to a conviction. That is not the case before me. [Redacted]'s evidence clearly was hearsay, but whether or not it was admissible is a question of law, not one of jurisdiction.
- Crown counsel argued before me that, given the surrounding circumstances, the preliminary hearing judge committed no error in admitting the evidence of [Redacted] on this issue. It is not necessary for me to decide whether the evidence was or was not admissible, and I decline to do so. In my view, the Ontario Court of Appeal and Supreme Court of Canada have been consistent in holding that the admissibility of evidence is a question of law and not reviewable on an application to quash a committal for trial.
- In R. v. Deschamplain the Supreme Court of Canada held that any error made by a preliminary hearing judge as to the application of the rules of evidence "constitutes an error of law, not a jurisdictional error" and is "not reviewable by way of certiorari." Similarly, Watt J.A. held in R. v. Vasarhelyi that errors in the admission of evidence or the application of the rules of evidence are errors of law and not jurisdictional in nature. The Supreme Court of Canada recently reiterated its position that certiorari cannot be used to challenge evidentiary rulings in R. v. Awashish, in which Rowe J. held:
Certiorari is an extraordinary remedy that is available only in narrow circumstances. Allowing parties to use it to challenge interlocutory rulings, including evidentiary matters, risks gravely slowing the criminal justice system. For similar reasons to those set out by the Court of Appeal, I would dismiss the Crown's appeal.
- The preliminary hearing judge may have erred in admitting this evidence as hearsay through [Redacted]. However, if this was an error (and I make no finding on whether it was), it was an error of law, not an error of jurisdiction. It is not the function of this court on certiorari to review evidentiary rulings or other errors of law. Accordingly, I find no merit to this aspect of the application.
F. CIRCUMSTANTIAL EVIDENCE and INFERENCES
- The applicant submits that the circumstantial evidence in this case was not sufficient to commit him for trial because no properly instructed jury could find him guilty on such evidence. The applicant argues that this case is analogous to the situation in R. v. Lights in which the Ontario Court of Appeal reversed the decision of a trial judge convicting an accused of drug possession based entirely on circumstantial evidence. In Lights, six men were sitting in an apartment when armed police suddenly entered pursuant to a warrant. On the floor of the apartment, equidistant from each of the six men, was a closed duffel bag containing over a kilogram of marijuana and two ounces of cocaine. There was no identification inside or attached to the bag. In the apartment itself police found a firearm, a bulletproof vest, a few leaves of marijuana next to a kitchen scale, a vacuum sealer, a money counter, and approximately $10,000 in cash locked in a safe. The accused was the principal occupant of the apartment (although he was not on the lease) and in his pocket he had a key to the safe. The Court of Appeal set aside Mr. Lights' conviction for possession of the drugs in the duffel bag and registered an acquittal. The Court found the trial judge's decision to be unreasonable, having previously defined that term as a verdict "that no properly instructed jury, acting judicially, could reasonably have rendered." In coming to that conclusion, the Court relied on the Supreme Court of Canada's decision in R. v. Villaroman, which held that "when the Crown's case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact to be satisfied beyond a reasonable doubt that the accused's guilt is the only reasonable inference to be drawn from the evidence as a whole." Applying those principles, Watt J.A. (writing for the unanimous Court) held:
But the black duffel bag and its contents was in a common area near the entrance to the apartment, equidistant to all six male occupants in possession of three fully-loaded handguns. The duffel bag was closed, its contents not visible from its exterior. There was no identification in, on, or attached to the bag. No forensic evidence linked the appellant to the bag. There was no evidence of its origins or how it came to be in its location. In these circumstances, we simply cannot say that the only reasonable inference from the evidence as a whole is that the appellant was in possession of the bag and its cache of contraband.
- Arguing by way of analogy, counsel for the applicant points out that [Redacted] was occupying the car when the drugs were in the trunk and had an address on his phone for the place where the drugs were to be delivered. However, there was no evidence connecting him to the backpack and its contents were not visible. There are other inferences that could logically be drawn with respect to the address on his phone and his knowledge and/or control of the drugs in the trunk. Therefore, he submits that no properly instructed jury could draw the inference of guilt and the committal for trial must therefore be quashed.
- The applicant also relies on the Court of Appeal's decision in United States v. Huynh in which Doherty J.A. held that where an inferential gap exists, it can only be properly overcome by evidence. In that case, the United States sought Mr. Huynh's extradition for the offence of laundering proceeds of crime obtained by the commission of the designated offence of trafficking in a controlled substance. The applicant was the owner of a large transport truck. The gas tank of the truck contained a secret compartment in which large quantities of cash were hidden and the truck was then driven across the border from the United States to Canada. Justice Doherty found that the designated offence of trafficking in a controlled substance was an essential element to be established and that this was not an inference that could properly be drawn from the evidence, stating:
The material identified by the respondent certainly permits the inference that the cash was the proceeds of some illicit activity. Drug trafficking comes readily to mind as one possible source. The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither are a substitute for evidence. The requesting state has not offered any evidence as to the source of the funds even though its material indicates that one of the parties to this conspiracy is cooperating with the police. Despite the effective argument of counsel for the respondent, I do not think there is anything in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity.
- The test on extradition is the same as on committal for trial after a preliminary inquiry. By analogy the applicant before me argues that Huynh stands for the proposition that where there are other available inferences from the circumstantial evidence, the hearing judge cannot draw an inference consistent with guilt.
- I confess that I find some logical force to the applicant's argument. Clearly, where there are multiple inferences available from the evidence, the preliminary hearing judge is required to draw the inference favourable to the Crown. This principle is well-established in the case law. However, the Supreme Court of Canada has also been clear in Villaroman that where a case is entirely circumstantial the jury must be instructed that they can only make a finding of guilt if that is the only reasonable inference from the evidence. This is an application of the ancient Rule in Hodge's Case. If there is any other available inference supported by the evidence looked at as a whole, even where the inference consistent with guilt is the most likely of the available inferences, the jury cannot return a guilty verdict. Logically, then, why commit an accused for trial in an entirely circumstantial case, where there are alternative inferences available from the evidence, and where the jury will be instructed that the availability of other rational inferences means they cannot draw an inference of guilt? The preliminary hearing judge is required to do some limited weighing of the evidence in a circumstantial case. Should this not include a recognition that, in a case based entirely on circumstantial evidence, proof beyond a reasonable doubt at trial will require the application of Hodge's Case? Having confessed my attraction to the logic of that proposition, I must also confess (as I did to counsel in this case during the course of their oral submissions) that I have previously written a decision on a certiorari application adopting that line of analysis, which was decisively reversed by the Ontario Court of Appeal.
- The Court of Appeal's decision in that case, R. v. Jackson, was authored by Doherty J.A. for the unanimous court. As I had relied on Doherty J.A.'s earlier decision in Huynh, the decision in Jackson addresses that point directly, stating:
The Superior Court judge confused cases in which the circumstantial evidence read at its strongest for the Crown could not reasonably support an inference of guilt (see e.g. United States of America v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.)), with cases in which the evidence could reasonably support inferences necessary to a finding of guilt or inferences inconsistent with guilt: (see e.g. Russell). The preliminary inquiry judge must discharge if the evidence falls into the first category of cases, but must commit for trial if the evidence falls into the second category.
- I take it from Jackson that Huynh is not properly characterized as a case in which there is more than one inference that can be drawn with respect to the source of the large amounts of cash being covertly transported across the border hidden in the truck's gas tank, but rather as a case where there is nothing but speculation to support the inference sought by the Crown. If characterized as the former, the hearing judge would be required to draw the inference that supports the Crown's theory. However, in the latter, the hearing judge must not draw any inference.
- The Court of Appeal was clear in Jackson that the Rule in Hodge's Case, as applied by the Supreme Court of Canada in Villaroman, has no place in the analysis at a preliminary hearing, nor on a certiorari review of a committal for trial. Doherty J.A. held:
Given the nature of the decision the preliminary inquiry judge must make when deciding whether to commit, I see no value in reference to Hodge's Case (1838), 2 Lewin 227. The often cited passage from Hodge's Case provides language that may be used in a jury instruction to assist a jury in applying the reasonable doubt standard to circumstantial evidence, and to alert the jury to the dangers of leaping too quickly to conclusions based on circumstantial evidence: see R. v. Villaroman, 2016 SCC 33. Neither concern is germane to the function of the preliminary inquiry judge at the end of the preliminary inquiry. Inserting the jury instruction language from Hodge's Case into the analysis required to determine whether an accused should be committed for trial is confusing and potentially misleading.
- Accordingly, the question at this point is not whether there are other inferences available consistent with the innocence of the accused. Rather, the question is whether there is any reasonable inference available at all that [Redacted] knew there were drugs in the trunk of the car and that the address on his phone was the drug drop-off point, and not simply some place to which they were headed. The fact that there is an available inference that [Redacted] was no more than a passenger in the car is irrelevant. The fact that [Redacted] referred to "two [Redacted] guys" being the couriers, when [Redacted] is [Redacted], is also irrelevant. It was [Redacted]'s father's car, he was in it at the time the drugs were picked up, he remained in it for the entire drive to [Redacted], he knew the address to which they were going, and [Redacted] referred multiple times to there being more than one courier involved for this delivery in the Toyota to [Redacted]. All of these facts together could support a rational inference that [Redacted] was acting as a drug courier and had knowledge and control over the drugs in the trunk of his father's car. In my view, such an inference is rooted in the evidence and goes beyond mere speculation. The existence of other inferences, and the significant (if not insurmountable) obstacle Villaroman and Hodge's Case will present at trial, are not relevant considerations at this stage.
- I find no error of jurisdiction by the preliminary hearing judge. This application is dismissed.