R. v. Sazant, 2004 SCC 77, [2004] 3 SCR 635

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.