R. v. Sazant, [2004] 3 S.C.R. 635, 2004 SCC 77
Her Majesty The Queen Appellant
v.
Marvin Sazant Respondent
Indexed as: R. v.
Sazant
Neutral citation: 2004 SCC 77.
File No.: 30079.
2004: June 16; 2004: November 19.
Present: McLachlin C.J. and Major, Bastarache, Binnie,
LeBel, Deschamps and Fish JJ.
on appeal from the court of appeal for ontario
Criminal law — Preliminary inquiry — Jurisdiction —
Certiorari — Preliminary inquiry judge discharging accused — Whether preliminary
inquiry judge failed to consider “the whole of the evidence” as prescribed by
Criminal Code — If so, whether such failure constitutes jurisdictional error —
Scope of review on certiorari of decision of preliminary inquiry judge to
discharge accused — Criminal Code, R.S.C. 1985, c. C-46,
s. 548(1) (b).
The accused was charged with historical sexual
offences, two of which were indecent assault and gross indecency against the
complainant when the complainant was between the ages of 14 and 16. At the
time, the age of consent was 14. At the preliminary inquiry, the complainant
stated in reply to questions from Crown counsel that the activity was not
something he wanted to be involved in, engaged in, or doing. On the count of indecent
assault, the preliminary inquiry judge held that the Crown had to adduce some
evidence that the complainant did not consent, and found that there was no
evidence of non‑consent. With respect to the count of gross indecency,
he held that an absence of evidence of non‑consent was a factor to
consider and that a reasonable jury properly instructed could not find that the
activity was grossly indecent. The accused was discharged on both counts. The
Crown successfully applied for certiorari and the reviewing judge
ordered the accused to stand trial on both counts. The Court of Appeal
restored the discharge order, holding that the discharge was not subject to
review on certiorari because the preliminary inquiry judge had erred
within his jurisdiction.
Held (Bastarache and
Fish JJ. dissenting): The appeal should be allowed. The discharge
order should be set aside and the matter remitted to the preliminary inquiry
judge.
Per McLachlin C.J. and
Major, Binnie, LeBel and Deschamps JJ.: When the decision of a
preliminary inquiry judge to discharge an accused is challenged by way of certiorari,
the reviewing court should intervene only if the judge committed a
jurisdictional error. Pursuant to s. 548(1) (b) of the Criminal
Code , a preliminary inquiry judge shall discharge an accused if, in his
opinion, on the whole of the evidence no sufficient case is made out to put the
accused on trial. The preliminary inquiry judge correctly stated the test for
committal in this case but erroneously concluded that there was no evidence of
non-consent. The complainant’s testimony that he did not want to take part in
the sexual activity constitutes direct evidence of lack of consent. In
discharging the accused without considering the whole of the evidence, the
preliminary inquiry judge exceeded his jurisdiction, and his decision was
accordingly subject to review on certiorari.
This is not a case where the sufficiency of the
evidence is in issue, because the preliminary inquiry judge held that there was
absolutely no evidence of non‑consent. Whether the judge misunderstood
the elements of the offences and gave effect to a non-existent defence,
preferred an inference favourable to the accused over an inference favourable to
the Crown, or simply overlooked the evidence of non‑consent, however his
reasons are interpreted, he misconstrued the nature of his task under
s. 548 and exceeded his jurisdiction.
Per Bastarache and Fish
JJ. (dissenting): The decision of the justice at the preliminary
inquiry raises no jurisdictional issues. Absence of consent by the complainant
was an essential element of one offence and an important element of the other.
In the justice’s opinion, there was no evidence capable of supporting a
reasonable finding of non-consent with respect to one of the complainants. He
therefore discharged the accused on the counts relating to that complainant.
The justice erred as to the sufficiency of the evidence but this error was not
subject to review on certiorari since it was an error committed within
the justice’s jurisdiction. The justice did not overlook the evidence
concerning consent. On the contrary, he considered the relevant evidence,
directly and specifically, on at least two different occasions and he found it
insufficient to establish non-consent. He erred, however, as to the legal
effect of the complainant’s evidence and mistakenly required proof of an
objective manifestation of non-consent. This error of law cannot properly be
characterized as jurisdictional and, like the sufficiency of the evidence, is
not reviewable on certiorari.
The preliminary inquiry justice did not improperly
weigh the evidence and choose between competing inferences. The evidence
supports both an inference that the complainant did not wish to participate in
the sexual activities and an inference that he regretted the activities. These
are not alternative inferences. The function of the preliminary inquiry
justice was to determine whether the evidence was capable of supporting a
reasonable finding of non-consent. He concluded that it was not because he
mistakenly applied an objective test, not because he improperly weighed
competing inferences.
Cases Cited
By Major J.
Referred to: R. v.
Deschamplain, [2004] 3 S.C.R. 601,
2004 SCC 76; R. v. Russell, [2001] 2 S.C.R. 804,
2001 SCC 53; Skogman v. The Queen, [1984]
2 S.C.R. 93; United States of America v. Shephard, [1977]
2 S.C.R. 1067; R. v. Arcuri, [2001] 2 S.C.R. 828,
2001 SCC 54; Dubois v. The Queen, [1986]
1 S.C.R. 366; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R.
v. Campbell (1999), 155 O.A.C. 143.
By Bastarache and Fish JJ. (dissenting)
Skogman v. The Queen,
[1984] 2 S.C.R. 93; Forsythe v. The Queen, [1980]
2 S.C.R. 268; Dubois v. The Queen, [1986]
1 S.C.R. 366; R. v. Russell, [2001] 2 S.C.R. 804,
2001 SCC 53; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R.
v. Morin, [1992] 3 S.C.R. 286; Quebec (Attorney General) v.
Girouard, [1988] 2 S.C.R. 254.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C-46, s. 548(1) [rep. & sub.
c. 27 (1st Supp.), s. 101(1) ].
APPEAL from a judgment of the Ontario Court of Appeal
(2003), 67 O.R. (3d) 481, 179 C.C.C. (3d) 1,
17 C.R. (6th) 194, 112 C.R.R. (2d) 46,
178 O.A.C. 1, [2003] O.J. No. 4001 (QL), reversing a decision of
the Superior Court of Justice, [2002] O.J. No. 956 (QL), quashing an order
of a preliminary inquiry judge discharging the accused on charges of indecent
assault and gross indecency. Appeal allowed, Bastarache and Fish JJ.
dissenting.
Jennifer Woollcombe, for the appellant.
J. Douglas Crane, Q.C., and James C. Morton, for the
respondent.
The judgment of McLachlin C.J. and Major, Binnie,
LeBel and Deschamps JJ. was delivered by
Major J. —
I. Introduction
1
This appeal, like its companion case, R. v. Deschamplain, [2004]
3 S.C.R. 601, 2004 SCC 76, concerns the scope of review on certiorari of
the decision of a preliminary inquiry judge to discharge an accused. While the
Ontario Court of Appeal acknowledged that the preliminary inquiry judge
committed an error, that error was held not to constitute a jurisdictional
error. I have reached a different conclusion. In my view, the preliminary
inquiry judge exceeded his jurisdiction. His decision to discharge the
respondent is therefore subject to review on certiorari. I would allow
the appeal.
II. Facts
2
The respondent was charged with historical sexual offences, two of which
were indecent assault and gross indecency against the complainant when he was
between the ages of 14 and 16. At the time of the alleged offences, the age of
consent was 14.
3
The respondent, a medical doctor, was an assistant coach of the
complainant’s basketball team. The complainant alleged that his relationship
with the respondent began when he was 13 years old. He claimed that the
respondent paid more attention to him than others, picked him up at school
sometimes, took him out to lunch, gave him some money and eventually asked him
if he wanted to come to his house and rake leaves. When the complainant
arrived, the respondent gave him a tour of the house and the first of two
incidents of sexual contact allegedly occurred.
4
Both alleged incidents, which happened several weeks apart, involved
disrobing, kissing on the lips, the respondent rubbing the complainant’s
genital area, straddling the complainant’s chest and inserting his penis into
the complainant’s mouth. The second incident also involved the use of ropes to
tie the complainant’s wrists to the bed post and ejaculation by the
respondent.
5
At the preliminary inquiry, after the complainant had described the
first incident involving the respondent pushing his penis in and out of his
mouth, Crown counsel asked:
Q. Is this something that you wanted to be doing?
A. No.
6
After the complainant described the second incident, Crown counsel
asked:
Q. Did you want to be engaging in that kind of activity on that day?
A. No. I think that – I think that I really wanted to spend time with
him, but not doing that.
Q. Why was it that you wanted to spend time with him?
A. Because he had patience for me and he was very kind and
understanding and I just felt like I related with him very well under the
pretence of what I thought the relationship was.
7
The complainant explained that he saw the respondent a few times after
the two incidents but avoided any discussion of him returning to the
respondent’s house. The respondent eventually told the complainant that he
could not be his friend if he was not going to go to his house and spend time
with him. Their relationship soon ended. After this part of the complainant’s
testimony, Crown counsel asked:
Q. Why would you avoid that issue?
A. Because I didn’t want to go.
Q. And why didn’t you want to go?
A. Because I didn’t want to get involved in the sexual escapades.
III. Judicial
History
A. Ontario
Court of Justice
8
Moore J. presided at the preliminary inquiry in the Ontario Court of
Justice. The testimony of another complainant was heard in October of 2000,
and the testimony of the complainant at issue here was heard on February 12,
2001. Written submissions were later filed and additional oral submissions on
committal were presented by counsel on April 17, 2001. The decision was
rendered on May 1, 2001.
9
Since the complainant was over the age of 14 when the incidents occurred
and consensual activity between males over 14 years of age was not an offence
at the relevant time, Moore J. noted that with respect to the allegation of
indecent assault, the Crown had to adduce some evidence that the complainant
did not consent to the activity that might be considered indecent. He found
the evidence to suggest that at some point in time after the sexual activity,
the complainant may have regretted what he had done but that there was
absolutely no evidence of non‑consent.
10
Moore J. acknowledged that for the allegation of gross indecency,
consent was not a defence where the complainant was under the age of 21 at the
time, but he held that the absence of evidence of non‑consent was a
factor in deciding whether the activity could amount to gross indecency. In his
view, the relevant factors to be considered included the existence or absence
of consent, the ages of the parties, the time and place, the relationship
between the parties, and the activity. Moore J. concluded that a reasonable
jury properly instructed could not find that the alleged activity was grossly
indecent. He discharged the respondent on both counts.
B. Superior
Court of Justice, [2002] O.J. No. 956 (QL)
11
Archibald J. heard the Crown’s application for review of the discharge
by way of certiorari in the Ontario Superior Court. He agreed that lack
of consent is an essential element of indecent assault but he held that the
offence is determined by the subjective state of mind of the complainant at the
time of the act. He found that the complainant’s testimony indicated lack of
consent. In his view, Moore J. had committed a jurisdictional error by failing
to consider all of the evidence before determining that there was no evidence
of non-consent and discharging the respondent. Archibald J. also held that
this error did not result from the application of the wrong test for
sufficiency, which would be within the preliminary inquiry judge’s
jurisdiction, but rather because Moore J. had decided an issue reserved for the
trier of fact. With respect to gross indecency, Archibald J. accepted that
lack of consent is a material factor and, together with the age disparity of 30
years and the nature of the sexual acts, there was evidence upon which a
reasonable and properly instructed jury could convict. Here too he held that
Moore J. had committed a jurisdictional error by deciding an issue that was
reserved for the trier of fact. Archibald J. ordered the respondent to stand
trial on both counts.
C. Ontario
Court of Appeal (2003), 67 O.R. (3d) 481
12
The Ontario Court of Appeal reversed the reviewing judge’ decision and
restored the discharge order. Feldman J.A. (Charron and Simmons JJ.A.
concurring) agreed that absence of consent is subjective and to be determined
by the complainant’s “subjective internal state of mind” at the time of the
offence. She accepted that the complainant’s testimony, on its face,
constituted direct evidence of lack of consent. In her view, by concluding
that there was no evidence of lack of consent, the preliminary inquiry judge
had erred in one of three ways, but that each type of error was within Moore
J.’s jurisdiction and not subject to review on certiorari.
13
Feldman J.A. also held that the erroneous conclusion that there was no
evidence of lack of consent formed part of Moore J.’s finding that the evidence
of the sexual activity and its circumstances, including that it was consensual,
could not amount in law to gross indecency. She was of the view that Moore J.
could not treat the issue of consent as one for the trier of fact once he found
that there was no evidence of lack of consent. Feldman J.A. held that the
conclusion of what conduct can amount to gross indecency in law is a question
of law and therefore not reviewable.
IV. Analysis
14
The purpose of the preliminary inquiry is to ensure that there is
sufficient evidence to commit the accused to trial. The preliminary inquiry is
therefore a pretrial screening procedure that also serves as a discovery
mechanism to the accused: see R. v. Russell, [2001] 2 S.C.R. 804, 2001
SCC 53, at para. 20; Skogman v. The Queen, [1984] 2 S.C.R. 93, at pp.
105-6. Guilt or innocence is determined at trial. The preliminary inquiry
judge’s decision to discharge or commit the accused to trial cannot be
appealed. While the decision can be challenged by way of certiorari,
the reviewing court should only intervene where the preliminary inquiry judge
committed a jurisdictional error.
15
Pursuant to s. 548(1) of the Criminal Code, R.S.C. 1985, c. C-46 ,
“[w]hen all the evidence has been taken” the judge 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;
16
If there is sufficient evidence upon which a reasonable and properly
instructed jury could convict, the preliminary inquiry judge must commit the
accused to trial: see United States of America v. Shephard, [1977] 2
S.C.R. 1067, at p. 1080. Thus, where the Crown has adduced direct evidence on
all the elements of the offence, the preliminary inquiry judge must commit the
accused to trial even if the defence proffers exculpatory evidence: see R.
v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54, at para. 29. It is, however,
a jurisdictional error for a preliminary inquiry judge to commit an accused to
trial where there is no evidence on an essential element of the charge: see
Skogman, supra, at p. 104.
17
As for the discharge of an accused, s. 548(1) directs that the
preliminary inquiry judge shall:
(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.
18
The preliminary inquiry judge in this appeal, Moore J., correctly stated
the test for committal and the corresponding onus that falls on the Crown. He
also recognized that a preliminary inquiry judge is not permitted to assess
credibility or reliability, and that where more than one inference can be drawn
from the evidence, only the inferences that favour the Crown are to be
considered. A preliminary inquiry judge who fails to respect these constraints
acts in excess of his or her jurisdiction: see Dubois v. The Queen,
[1986] 1 S.C.R. 366, at p. 380.
19
There is no dispute that Moore J. erroneously concluded that there was
“absolutely no evidence of non consent”. The absence of consent is subjective
and “the actual state of mind of the complainant is determinative”: see R.
v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 26-27. (The Ewanchuk
decision was handed down February 25, 1999. The preliminary inquiry judge
pronounced his decision in this case on May 1, 2001). As the Court of Appeal
pointed out, at para. 21, the fact that the complainant testified that he did
not want to take part in the sexual activity with the respondent constitutes
direct evidence of lack of consent.
20
The testimony of the complainant was heard on February 12, 2001. Both
counsel gave submissions following the testimony on that day. The Crown
specifically raised the evidence of non‑consent established by the complainant’s
testimony and the preliminary inquiry judge had several exchanges with the
Crown on that aspect of the evidence and “how far we’ve come” since the
1970’s. The portion of the transcript that is relevant to this exchange reads:
THE COURT: – since the early 70’s and I mean I just recall so vividly
in any sexual assault trial that used to take place that that was such
an integral part of the Crown’s case was asking the complainant “Did you
consent” and if he did consent or if he didn’t consent, “What did you say?
What did you do? How did you convey that?” and so on and so forth. And what
was going on in the complainant’s mind was a far less – unless there was more,
was of far less importance compared to what it is – the way it is now. I
mean, it’s almost gotten to the point now where the accused has to prove –
MR. BUTT: Take all . . .
THE COURT: – consent as opposed to the Crown proving non-consent.
[Emphasis added.]
It seems clear
that Moore J. realized that the law had moved on from the 1970’s when, so he
thought, a complainant had to manifest to the accused a lack of consent. There
clearly was evidence before Moore J. that the complainant had not
consented in this case.
21
Then, on April 17, 2001, Moore J. heard more oral submissions from
counsel after reviewing written submissions regarding the gross indecency
charge with the benefit of the certified transcription. Once again, the issue
of non‑consent was discussed. On May 1, 2001, the decision was rendered
orally from the bench. Moore J. concluded that the testimony of the
complainant, at its highest, established that he may have regretted the sexual
activities after the fact, but not lack of consent at the time.
22
In the Court of Appeal, Feldman J.A. held, at para. 25, that if Moore J.
had failed to take into account the evidence of non-consent, the error did not
go to jurisdiction. With respect, this was an error. As stated in Deschamplain,
supra, a preliminary inquiry judge who fails to satisfy the statutory
requirement of s. 548(1) (b) of the Criminal Code to consider all
of the admitted evidence before discharging the accused commits a
jurisdictional error. On this basis alone, Moore J.’s decision is subject to
review on certiorari.
23
In R. v. Campbell (1999), 155 O.A.C. 143, a panel of the Ontario
Court of Appeal consisting of Weiler, Abella, and Goudge JJ.A. in a per
curiam opinion noted at para. 7:
As Campbell, J., said in R. v. McIlwain (1988),
67 C.R. (3d) 397 (Ont. 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 R. v. Dubois, [1986] 1
S.C.R. 366 . . ., 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
[380]:
“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.”
24
While this Court held in Russell, supra, at para. 48, that
“a preliminary inquiry judge’s determination of sufficiency is entitled to the
greatest deference”, I do not think the issue here has anything to do with
“sufficiency”. The preliminary inquiry judge flatly stated, “I find that there
is absolutely no evidence of non-consent, in either words or actions.”
25
Accordingly, there seem to be three possible interpretations of what the
preliminary inquiry judge did, any of which would result in a loss of
jurisdiction.
(1)
First, the preliminary inquiry judge may have entirely misunderstood the
elements of the offences of indecent assault and gross indecency and given
effect to a non-existent defence, as suggested by my colleagues, Bastarache and
Fish JJ. This interpretation, on its face, would be contrary to what the
preliminary inquiry judge said about what he regarded as changes in the law of
consent since “the 1970’s”. If indeed this was the basis of the preliminary
inquiry judge’s decision, it would also mean that the preliminary inquiry judge
had never tested the Crown’s evidence against the actual elements of the
offences charged. In that event, the reasoning of this Court in Dubois,
supra, at pp. 378-79, is applicable:
This is not a case where the reviewing judge merely thinks that the
justice was wrong, in the sense that if the reviewing judge had been sitting at
the preliminary inquiry, he would have reached a different conclusion as to the
sufficiency of the evidence. It is a case in which the real complaint is that
the exercise of weighing the evidence proceeded on an entirely erroneous
basis in law, which in turn goes to the mandate issued by Parliament . .
. . [Emphasis added.]
(2) Second,
the preliminary inquiry judge may have decided that the complainant’s evidence
was ambiguous in that it could be construed as an expression of
“after-the-fact” regret rather than “during-the-fact” non-consent. However, if
the preliminary inquiry judge preferred an inference favourable to the accused
over an inference favourable to the Crown, then he would have exceeded his
jurisdiction by deciding an issue reserved for the trial judge.
(3) Third,
the preliminary inquiry judge on May 1, 2001 could simply have overlooked the
evidence of non-consent that had been discussed with the Crown and the defence
during earlier oral argument. If so, he would have failed to consider “the
whole of the evidence” and would on that account as well have stepped outside
his jurisdiction.
26
Accordingly, however his reasons are interpreted, the preliminary
inquiry judge misconstrued the nature of his task under s. 548 of the Criminal
Code and, by discharging the accused on that basis, he exceeded his jurisdiction.
V. Disposition
27
I would allow the appeal, 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.
The following are the reasons delivered by
Bastarache and Fish JJ.
(dissenting) —
I
28
At the conclusion of his preliminary inquiry, the respondent was
committed to trial on two counts set out in the information laid against him
and he was discharged on two others. We are not concerned here with the
correctness of the justice’s conclusion regarding any of the four counts. Nor
are we concerned with the cogency of his reasons for judgment.
29
The sole question on this appeal is whether the justice lacked
jurisdiction to decide as he did on two of the four counts. In the
Crown’s view, the justice acted within his jurisdiction in committing the
respondent on two counts, but exceeded his jurisdiction in discharging him on
the two others.
30
In our respectful view, the decision of the justice raises no
jurisdictional issues at all. We would therefore dismiss the appeal.
II
31
After taking the evidence, examining the transcript and considering the
written and oral submissions of counsel, the justice at the preliminary inquiry
discharged the respondent on two counts involving R, and committed him to trial
on two others, involving G. The nature of the offences is set out in the
reasons of Major J. With regard to each complainant, one count alleged
indecent assault and the other gross indecency, under sections of the Criminal
Code, R.S.C. 1985, c. C-46 , that have since been repealed and replaced.
Absence of consent by the complainant was an essential element with respect to
one offence and an important element with respect to the other. The justice
discharged the respondent on the two counts involving R because, in his view,
there was no evidence that R had not consented — “in either words or actions” —
to the sexual conduct in issue.
32
There is no suggestion that the presiding justice lacked jurisdiction to
hear the matter or exceeded his jurisdiction in conducting the proceedings as
he did. As mentioned earlier, it is not contended that he exceeded his
jurisdiction in committing the respondent to trial on the two counts involving
G. It is only in discharging the respondent on the two remaining counts that
the justice is said by the Crown to have exceeded his jurisdiction. And the
justice is said to have done so because “the necessary precondition for a
discharge order, an absence of sufficient evidence, was not present”
(Crown’s Application for Certiorari, A.R., at p. 48 (emphasis in
original)).
33
Framed in these terms, the imputed error amounts, manifestly, to an error
as to the sufficiency of the evidence. As we shall presently see, that is
an apt characterization of the error committed by the justice. He was mistaken
as to the sufficiency of the evidence. Plainly, however, an error of that sort
does not give rise to certiorari, since questions regarding the
sufficiency of the evidence are within the exclusive jurisdiction of the
justice who conducts a preliminary inquiry and are not subject to review: Skogman
v. The Queen, [1984] 2 S.C.R. 93; Forsythe v. The Queen, [1980] 2
S.C.R. 268; Dubois v. The Queen, [1986] 1 S.C.R. 366.
34
The Crown has since departed from the initial formulation of the ground
upon which it applied for certiorari. But the fresh face of its only
ground, though perhaps more attractively made up, is again without foundation.
35
The justice, it is now said, exceeded his jurisdiction because he failed
to consider evidence concerning the critical issue of consent. The record
shows unmistakably, however, that the justice did consider the relevant
evidence — not once, but on at least two different occasions. As Major J.
points out, at para. 20 of his reasons, the justice “had several exchanges with
the Crown on that aspect of the evidence” during the hearing of February 12,
2001. Major J. takes care to note as well that, at the hearing of April 17,
2001, this time with a certified transcript of the evidence in hand, the issue
of non-consent was again discussed by the justice in the course of further
submissions by counsel.
36
Here is but one of the exchanges that demonstrate the justice’s
consideration of the evidence he is now said to have overlooked:
THE COURT: I think you may have asked him, “Did you want any of this to
happen”. I think his response was “I didn’t want the sexual escapade or sexual
episode”. But there’s no evidence he ever told him that, that he didn’t –
you’ve got to keep in mind how the law has changed since then and that he ever
voiced any opinion one way of the other or he ever did anything to show any non
– that he wasn’t consenting.
MR. BUTT: Yes, I understand that. I guess I tried to cover it in two
ways, and it’s Your Honour’s recollection of the transcript. The first was
that he expressed an absence of consent for the actual acts and then there’s a
little bit later in the questioning, and I’m going from recollection, that I
covered the area of how he stopped going to the house because he didn’t want
those events to continue to occur. Indeed, it was his refraining from going to
the house that ultimately precipitated the demise of the relationship. So in my
submission, one can read from the evidence in those two areas a foundation upon
which a fact-finder could reasonably conclude that there was not the requisite
consent.
THE COURT: You’re talking about what may have been in the mind of
the complainant. You’re not talking about what was conveyed.
MR. BUTT: Yes, that’s quite correct. But on my understanding of the
definition of the offence, if you have the commission of certain sexual acts
without consent being present. So what’s in the mind of the accused is one
thing, but the factual element of the presence or absence of consent, which is
what the Crown has to prove, in my submission is what is relevant, so that the
absence of consent as evidenced by those statements by the complainant are
sufficient to found the charge.
THE COURT: Well, that may or may not be the case now. The case law has
changed so much –
MR. BUTT: Yes, it – it certainly –
THE COURT: – since the early 70’s and I mean I just recall so vividly
in any sexual assault trial that used to take place that that was such an
integral part of the Crown’s case was asking the complainant “Did you consent”
and if he did consent or if he didn’t consent, “What did you say? What did you
do? How did you convey that?” and so on and so forth. And what was going on
in the complainant’s mind was a far less – unless there was more, was of far
less importance compared to what it is – the way it is now. I mean, it’s
almost gotten to the point now where the accused has to prove –
MR. BUTT: Take all . . .
THE COURT: – consent as opposed to the Crown proving non-consent.
MR. BUTT: Absolutely right . . .
THE COURT: I mean that’s how far we’ve come. That’s how far we’ve
come, or whatever way you want to look at it. [Emphasis added.]
37
The justice thus dealt directly and specifically, in the course of
counsel’s submissions, with the evidence he is said by the appellant not to
have considered at all. It is apparent from his comments, moreover, why, in
his mind, that evidence was insufficient to establish non-consent with respect
to the counts upon which he ultimately discharged the respondent.
38
We pause to underline, in this context, our agreement with Major J. that
the justice instructed himself impeccably, both as to his own role and as to
the Crown’s burden at preliminary inquiry. He emphasized, in particular, that
he was “not sitting here and judging the credibility or reliability or
probability of the evidence”.
39
In this light especially, we find in the record no basis for concluding
that the justice disregarded his own correct and meticulously enunciated
understanding of the limited role of a justice at a preliminary inquiry — by
proceeding, in the next breath, to disregard these constraints and to usurp the
duties of the trial court.
40
The justice, we repeat, can hardly be said to have “failed to consider”
evidence that he in fact contemplated expressly and repeatedly with the benefit
of the Crown’s submissions on the element of non-consent. He did so both
immediately after the evidence had been taken and afresh when more detailed
submissions were made at a later date, with the benefit of a transcript in
hand.
41
We agree that the justice erred in his conclusion as to the legal
effect of the evidence in question. But an error of this sort cannot
properly be characterized as jurisdictional, except where it results in a
committal to trial in the absence of some evidence capable of supporting a
conviction: see McLachlin C.J., speaking for a unanimous court in R. v.
Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at paras. 28-29.
42
The Crown has raised an alternative ground upon which the justice is
said to have exceeded his jurisdiction. That hypothesis rests on an assumption
that the justice impermissibly preferred an innocent inference to a culpable
one. For the reasons explained below, we are satisfied that the justice did
nothing of the sort.
43
In short, the simple fact of the matter is that the justice discharged
the respondent on two counts because of an error in law which, like the
sufficiency of the evidence, is not reviewable on certiorari.
III
44
The complainant’s failure to consent to the sexual activities in issue
here was, as mentioned earlier, an essential element on one count and an
important element on the other. “Consent” and “non-consent”, in this context,
must be appreciated subjectively, not objectively: R. v.
Ewanchuk, [1999] 1 S.C.R. 330. In this case, the justice mistakenly held
that the required lack of consent had to be expressed, as he put it, “in either
words or actions”. Again in his terms, it was not a mere matter of what was
“in the mind of the complainant”.
45
After considering the evidence that he is said not to have considered,
the justice concluded that it could not reasonably support a finding of
non-consent, objectively manifested “in either words or actions”. This,
however, was the right answer, but to the wrong question. The right question
was whether a properly instructed jury, acting reasonably, could find that the
evidence established a subjective lack of consent — that is, whether the
Crown had discharged its evidential burden on that element of the offences
charged. To that correct question, the justice unfortunately gave the wrong
answer — not because he overlooked some of the evidence (assuming this to be a
jurisdictional error), but rather because he was mistaken as to the subjective
nature of the critical element of non-consent.
46
Here, the justice’s error as to the sufficiency of the evidence
constituted an error in law because it resulted from his “misapprehension of
some legal principle”: see R. v. Morin, [1992] 3 S.C.R. 286, at p. 295.
An error in law of this sort may well, on an appeal, result in the quashing of
a resulting decision. But it remains an error committed within the court’s
jurisdiction. In the absence of a right of appeal — and there is no appeal
from the decision of a justice at a preliminary inquiry — the decision, however
erroneous, is not for that reason reviewable in superior court: Russell,
supra; Quebec (Attorney General) v. Girouard, [1988] 2 S.C.R.
254.
IV
47
Major J. considers, at para. 25, that there “seem to be three possible
interpretations of what the preliminary inquiry judge did, any of which would
result in a loss of jurisdiction” and he sets them out this way:
(1) First, the preliminary inquiry judge may have entirely
misunderstood the elements of the offences of indecent assault and gross
indecency and given effect to a non-existent defence, as suggested by my
colleagues, Bastarache and Fish JJ. This interpretation, on its face, would be
contrary to what the preliminary inquiry judge said about what he regarded as
changes in the law of consent since “the 1970’s”. . . .
.
. .
(2) Second, the preliminary inquiry judge may have decided that the
complainant’s evidence was ambiguous in that it could be construed as an
expression of “after-the-fact” regret rather than “during-the-fact”
non-consent. However, if the preliminary inquiry judge preferred an inference
favourable to the accused over an inference favourable to the Crown, then he
would have exceeded his jurisdiction by deciding an issue reserved for the
trial judge.
(3) Third, the preliminary inquiry judge on May 1, 2001 could simply
have overlooked the evidence of non-consent that had been discussed with the
Crown and the defence during earlier oral argument. If so, he would have
failed to consider “the whole of the evidence” and would on that account as
well have stepped outside his jurisdiction.
48
With respect, the first of these interpretations mischaracterizes our
position. We do not suggest that the justice “[gave] effect to a non‑existent
defence”. Rather, he discharged the respondent on the two counts that concern
us here because, in his opinion, the Crown had failed to discharge its
evidential burden on the critical element of non‑consent. In reaching
this conclusion, the justice mistakenly thought that the applicable test was
objective.
49
Our colleague states that “[t]his interpretation, on its face, would be
contrary to what the preliminary inquiry judge said about what he regarded as
changes in the law of consent since ‘the 1970’s’.” In our respectful view, the
opposite is true. Both in his exchanges with counsel and in his reasons for
discharge, the justice, as mentioned earlier, repeatedly and explicitly framed
the issue as we have set it out. He discharged the respondent because, in his
own words: “there is absolutely no evidence of non‑consent, in either
words or actions” (A.R., at pp. 11-12); “there’s no evidence [the complainant]
. . . ever did anything to show . . . that he wasn’t consenting” (A.R.,
at p. 156); “You’re talking about what may have been in the mind of the
complainant. You’re not talking about what was conveyed” (A.R., at
p. 157). (Emphasis added.)
50
Moreover, the justice’s comments concerning changes in the law since the
1970’s should not be divorced from their context. The offences charged in this
case were alleged to have been committed between 1972 and 1982. The justice
appears to have been under the mistaken impression that the issue of non‑consent
was to be resolved according to the law as it was then understood and applied.
He thus stated, for example, that “what was going on in the complainant’s mind
. . . unless there was more, was of far less importance compared to . . . the
way it is now”.
51
What is in any event clear from the record is that the justice
discharged the respondent because, in his opinion, there was no evidence of non‑consent,
objectively considered. This was plainly an error of law committed by the
justice within his jurisdiction. Unlike Dubois, supra, relied on
in this regard by Major J., this was hardly a case where the preliminary
hearing judge “arrogated to himself the decision of the issue reserved by
Parliament to another forum, the trial court” (p. 380).
52
This brings us to the second of the three possible interpretations which
all lead, in our colleague’s view, to the conclusion that the justice exceeded
his jurisdiction in discharging the respondent.
53
Here, Major J. accepts the Crown’s alternative submission, mentioned
earlier. Essentially, the Crown contends that the justice in this case
“committed jurisdictional error by either declining to consider the direct
evidence of an absence of consent” — a matter with which we have already dealt
— “or by improperly weighing competing inferences from the evidence and
choosing an inference other than the one most favourable to the Crown”.
54
With respect, the second hypothesis, like the first, appears to us
erroneous. There was no question here of “choosing” one inference over the
other. The evidence in question is capable of supporting a finding that the
complainant did not wish to participate in the impugned sexual activities. It
is capable as well of supporting a finding that the complainant regretted they
had occurred. The justice did not prefer one of these findings over the
other. There was no question of choosing between them. They were not alternative
inferences at all.
55
The ultimate question was not whether the complainant had consented to
the sexual activities in issue or regretted that he had done so.
Rather, the question was whether the complainant had consented or not
consented to the sexual activities. The justice recognized that an
ultimate finding on this issue was not within his province, but rather reserved
to the trial court. His function was to determine whether the evidence was
capable of supporting a reasonable finding of non-consent. He concluded that
it was not because there was no evidence of non-consent “in either words or
actions” — and not as the appellant suggests, “by improperly weighing competing
inferences”.
56
The third possible interpretation mentioned by Major J. is that the
justice “could simply have overlooked the evidence of non-consent that had been
discussed with the Crown and the defence during earlier oral argument”. With
respect, we believe this speculative hypothesis, even in the absence of any
indication to the contrary, could not support a finding in this Court that the
justice exceeded his jurisdiction. Here, it is in any event precluded by the
justice’s explicit reference in his formal reasons to the absence of “evidence
of non-consent, in either words or actions” — the very focus of his
earlier discussions with counsel.
V
57
For all of these reasons, we are both of the view, as mentioned at the
outset, that the appeal should be dismissed.
Appeal allowed, Bastarache
and Fish JJ.
dissenting.
Solicitor for the appellant: Attorney General of Ontario,
Toronto.
Solicitor for the respondent: J. Douglas Crane,
Toronto.