R. v. Deschamplain, 2004 SCC 76, [2004] 3 SCR 601

R. v. Deschamplain, [2004] 3 S.C.R. 601, 2004 SCC 76

Her Majesty The Queen                                                                                  Appellant

v.

Douglas Deschamplain                                                                                 Respondent

Indexed as:  R. v. Deschamplain

Neutral citation:  2004 SCC 76.

File No.:  29722.

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, a police officer, went to his son’s school while on duty in response to allegations that his son had shown a knife to other students and made threats.  He met a teacher, who gave him the knife so he could conduct a police investigation.  Another officer was subsequently assigned to investigate and discovered that the accused had not made notes in his police notebook nor completed a police report about the incident nor secured the knife as an exhibit.  The accused did not comply with a request to turn the knife over to the police.  He was charged with possession of “a prohibited weapon, to wit a brass knuckle knife” and with obstruction of justice.  At the preliminary inquiry, the teacher testified that the handle of the knife was silver in colour with brass-knuckle type four rings.  He said that he had not touched the knife and indicated that by using the descriptor “brass-knuckle type” he was not suggesting that the handle was made of metal.  Brass knuckles are described under the relevant regulations as consisting of a band of metal with one or more finger holes designed to fit over the fingers of the hand.  The preliminary inquiry judge held that the Crown had failed to adduce any evidence that the handle of the knife was made of metal.  She discharged the accused on the prohibited weapon charge because an essential element of the offence had not been made out and she held that a discharge on the count of obstruction of justice resulted as a matter of course.  The Crown successfully applied for certiorari and the reviewing judge set aside the discharge order.  The Court of Appeal restored the order.  It was prepared to assume that the preliminary inquiry judge had erred in failing to consider the whole of the evidence but held that such an error amounts to an error in assessing the sufficiency of the evidence, an error that was within the jurisdiction of the preliminary inquiry judge and was thus not reviewable on certiorari.

Held (Binnie, LeBel 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, Bastarache and Deschamps JJ.:  A preliminary inquiry judge commits a jurisdictional error if he or she fails to consider “the whole of the evidence”, as prescribed by s. 548(1) (b) of the Criminal Code , before discharging an accused.  The judge must obey mandatory statutory jurisdictional prescriptions, or risks intervention by a reviewing court on certiorari.  Here, the preliminary inquiry judge failed to fulfill her obligations under s. 548(1)(b).  On the count of possession of a prohibited weapon, her finding that there was no evidence that the handle of the knife was made of metal is unsupported by the record.  Silence in the reasons alone may not necessarily be sufficient to justify intervention, however, on the main issue of the case, she mentioned only the teacher’s testimony and his description of the knife and  did not refer to the considerable body of circumstantial evidence.  Her finding that the count of obstruction of justice “fail[ed] as a matter of course” also amounted to a non-assessment of the circumstantial evidence since, in the performance of his duties, the accused was expected to secure any evidence and to document and report the complaint so that another investigator could be assigned.  By failing to consider the whole of the evidence before discharging the accused, the preliminary inquiry judge committed a jurisdictional error on both counts.  Although a preliminary inquiry judge is not required to give extensive reasons, there must be some indication that the mandatory requirement of s. 548(1)(b) has been complied with, and the failure to give such an indication results in a loss of jurisdiction.  A decision as to the sufficiency of evidence is beyond review by certiorari only when it was made by a preliminary inquiry judge who was acting within his or her jurisdiction, pursuant to the mandatory provisions of s. 548.

Per Binnie J. (dissenting):  The preliminary inquiry judge did not commit a jurisdictional error.  There is no reason to believe in this case that she failed to consider “the whole of the evidence”.  Although the judge did not mention the circumstantial evidence in her reasons, what is required is that her reasons indicate she understood the nature of the case so that the parties recognize that the case they argued was the one decided.  The teacher’s evidence was the focus of the arguments of both the Crown and the defence, and the main issue was whether the knife was made of metal.  Inferences from the subsequent conduct of the accused were secondary.  A preliminary hearing judge ought not to be reversed simply because the reasons do not advert to all of the secondary or collateral circumstances that the Crown now say had a bearing on the main issue.  The Crown did not demonstrate that the preliminary inquiry judge likely overlooked the circumstantial evidence.

Per LeBel J. (dissenting):  The preliminary inquiry judge did not commit a jurisdictional error.  In the circumstances of this case, the Crown did not establish that she failed to consider the  whole of the evidence.

Per Fish J. (dissenting):  The preliminary inquiry justice’s omission to mention explicitly in her reasons certain elements of circumstantial evidence or to include a generalized assertion that she had considered all of the evidence does not indicate that she in fact failed to consider all of the evidence before discharging the accused.  First, it cannot be assumed from the justice’s silence that she did not consider the circumstantial evidence.  It is more plausible to infer that she  simply found that the evidence she did not mention had no significant probative value, since it could not support a rational conclusion that the handle of the knife was made of metal — the critical issue in the case.  Even if she was mistaken, her error would relate to the sufficiency of the evidence and would not constitute a jurisdictional error giving rise to certiorari.  Second, there is some indication in her reasons that she did assess the circumstantial evidence.  While the preliminary inquiry justice focussed her attention on the teacher’s evidence, she also adverted to the Crown’s submissions regarding reasonable inferences that could be drawn from the record.  Third, since the Crown, in its submissions relating to the composition of the weapon, referred the justice exclusively to the teacher’s testimony — its strongest and most significant evidence — it is not surprising that the justice did the same in her reasons.  Fourth, the inquiry was neither disjointed nor hurried and the disposition was not reached precipitously or without reflection.  In their submissions, both counsel drew the justice’s attention to the circumstantial evidence, including the accused’s “subsequent conduct”.  A reviewing court should not assume that the evidence vanished overnight from the justice’s realm of contemplation.  This is especially so where the justice amply demonstrated that she understood and considered all of the relevant issues.  She was also perfectly aware of the limited nature of her task and of the test she was to apply in discharging it.  There is no basis to assume that the preliminary inquiry justice did not apply the principles she had so carefully set out. 

Cases Cited

By Major J.

Referred to:  R. v. Sazant, [2004] 3 S.C.R. 635, 2004 SCC 77; Forsythe v. The Queen, [1980] 2 S.C.R. 268; Dubois v. The Queen, [1986] 1 S.C.R. 366; R. v. Morin, [1992] 3 S.C.R. 286; R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54; R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53; United States of America v. Shephard, [1977] 2 S.C.R. 1067; Skogman v. The Queen, [1984] 2 S.C.R. 93; Macdonald v. The Queen, [1977] 2 S.C.R. 665; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26.

By Binnie J. (dissenting)

R. v. Sazant, [2004] 3 S.C.R. 635, 2004 SCC 77; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27.

By LeBel J. (dissenting)

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

By Fish J. (dissenting)

Skogman v. The Queen, [1984] 2 S.C.R. 93; Forsythe v. The Queen, [1980] 2 S.C.R. 268; R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53; Dubois v. The Queen, [1986] 1 S.C.R. 366; Doyle v. The Queen, [1977] 1 S.C.R. 597; R. v. Morin, [1992] 3 S.C.R. 286; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; R. v. B. (C.R.), [1990] 1 S.C.R. 717.

Statutes and Regulations Cited

Criminal Code , R.S.C. 1985, c. C-46 , ss. 84(1) , 91(2) , 139(2) , 548(1)  [rep. & sub. c. 27 (1st Supp.), s. 101(1)], 675, 676, 691, 693.

Police Services Act, R.S.O. 1990, c. P.15, s. 42.

Regulations Prescribing Certain Firearms and other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted, SOR/98-462, s. 4, Part 3, s. 15.

APPEAL from a judgment of the Ontario Court of Appeal (2003), 173 C.C.C. (3d) 130, 168 O.A.C. 389, [2003] O.J. No. 570 (QL), reversing a decision of the Superior Court of Justice setting aside a preliminary inquiry judge’s order discharging an accused.  Appeal allowed, Binnie, LeBel and Fish JJ. dissenting.

Jennifer Woollcombe, for the appellant.

Michael W. Lacy, for the respondent.

The judgment of McLachlin C.J. and Major, Bastarache and Deschamps JJ. was delivered by

Major J. —

I.  Introduction

1                                   This appeal, like its companion case, R. v. Sazant, [2004] 3 S.C.R. 635, 2004 SCC 77, concerns the scope of review on certiorari of the decision of a preliminary inquiry judge to discharge an accused.  The issue raised in this appeal is whether the failure of a preliminary inquiry judge to consider “the whole of the evidence” as prescribed by s. 548(1) (b) of the Criminal Code , R.S.C. 1985, c. C-46 , before discharging an accused, constitutes a jurisdictional error.  The Ontario Court of Appeal held that such an error falls within the jurisdiction of the preliminary inquiry judge and is therefore immune from review.  With respect, I do not agree.  A preliminary inquiry judge who fails to meet the statutory obligations imposed by Parliament acts in excess of his or her jurisdiction and risks the intervention of a reviewing court.  For the reasons that follow, I would allow the appeal.

II.  Facts

2                                   On May 24, 2000, the respondent, a member of the Ontario Provincial Police, attended an elementary school with another police officer, Constable Renauld.  Both officers were in uniform and on duty.  The respondent’s wife had arrived earlier to search for a knife that she believed was in their son’s possession.  Her actions were prompted by the alarming notes she found at home written by him.  She called the respondent from the school.  There were allegations that their son had shown a knife to other students and made threats.  The knife was found in a box in another student’s desk and given to Guy Campeau, a teacher, who decided that the police should be contacted.

3                                   The respondent met with his wife, their son and Mr. Campeau, in the principal’s office.  Constable Renauld remained in the outer office with the secretary.  The respondent told Mr. Campeau that the knife had been recently bought at a flea market for whittling wood and that he had warned his son not to take it to school.  Mr. Campeau suggested that the respondent’s son be sent home and that the principal, David Parks, who was away that day, would decide the length of the suspension.

4                                   Given the seriousness of the situation, Mr. Campeau asked the respondent about the procedure for laying criminal charges. The respondent told him that it was the responsibility of the police.  He also asked the respondent whether he was there as a father or police officer, and the respondent replied that he was there as a concerned father and as a police officer.  Mr. Campeau decided that as a police officer, the respondent should have the knife in order to conduct the investigation, and gave it to him.  The respondent, accompanied by Constable Renauld, then drove his wife and son home.

5                                   On May 25, 2000, Mr. Parks, the principal, dissatisfied with how the matter had been handled the previous day, contacted the police and requested that another officer investigate the incident.  Detective Sergeant Lalonde was assigned to the case and when he spoke to the respondent that night, he asked him what sort of knife was involved.  The respondent replied that it was a small jackknife.  Mr. Campeau had looked at the knife in the box after removing the lid but never touched it.  He testified at the preliminary inquiry that the handle and the grip area of the knife were silver in colour with “brass-knuckle type four rings that you would put your fingers through to hold on to the handle”.  Mr. Campeau did not say in direct examination that the handle was made of metal and in cross-examination clarified that by using the descriptor “brass-knuckle type”, he was not suggesting that the handle was made of brass.

6                                   Detective Sergeant Lalonde discovered that the respondent had not made any notes in his police notebook, completed a police report about the incident or secured the knife as an exhibit.  The respondent never complied with a subsequent request to turn the knife over to the police.

7                                   On June 22, 2000, the respondent was charged with two Criminal Code   offences:  possession of a prohibited weapon contrary to s. 91(2) and obstruction of justice contrary to s. 139(2).

III.  Judicial History

A.  Ontario Court of Justice

8                                   A preliminary inquiry was commenced before Serré J. of the Ontario Court of Justice on April 17, 2001.  Three witnesses testified for the Crown:  Guy Campeau, Detective Sergeant Lalonde, and Constable Renauld.  The matter was adjourned to May 30, 2001, when counsel made their submissions on committal.  Serré J. rendered her decision the following day, and discharged the respondent on both counts.  As a prohibited weapon, “brass knuckles” are described in the Regulations Prescribing Certain Firearms and other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted, SOR/98-462, Part 3, s. 15, as “consisting of a band of metal with one or more finger holes designed to fit over the fingers of the hand”.  In the view of Serré J., on the strength of Mr. Campeau’s testimony alone, the Crown had failed to adduce any evidence that the handle of the knife was made of metal, and therefore an essential element of the prohibited weapon charge was not met.  She concluded that a discharge under the second count, obstruction of justice, resulted as a matter of course.  Serré J. made no reference to the circumstantial evidence including the evidence presented by the other witnesses.

B.  Superior Court of Justice

9                                   The Crown brought an application in the Ontario Superior Court seeking an order in lieu of certiorari quashing the discharge order.  The reviewing judge, Gauthier J., concluded that Serré J. had exceeded her jurisdiction by failing to commit on the first count despite direct evidence and by failing to consider the sufficiency of the circumstantial evidence with respect to both counts.  She set aside the discharge order and remitted the matter back to Serré J. to commit the respondent on the first count and to consider the whole of the evidence with respect to the second.

C.  Ontario Court of Appeal (2003), 173 C.C.C. (3d) 130

10                               The Ontario Court of Appeal reversed the reviewing judge’s decision and restored the discharge order.  Laskin J.A. (Morden and Feldman JJ.A. concurring) noted that the Crown had rightly conceded that there was no direct evidence adduced at the preliminary inquiry that any part of the knife handle attaching to the four finger rings was made of metal.  In fact, the evidence proffered on this element was entirely circumstantial.  Laskin J.A. was prepared to assume that on the whole of the evidence, a reasonable and properly instructed jury could conclude that the knife was a prohibited weapon.  However, he held that a failure to consider all of the evidence constitutes an error in assessing the sufficiency of the evidence, and since such an error falls within the jurisdiction of the preliminary inquiry judge, it is not reviewable.

IV.  Relevant Statutory Provisions

11                               Criminal Code , R.S.C. 1985, c. C-46 

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

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

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

Regulations Prescribing Certain Firearms and other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted, SOR/98-462

4.  The weapons listed in Part 3 of the schedule are prohibited weapons for the purposes of paragraph (b) of the definition “prohibited weapon” in subsection 84(1)  of the Criminal Code .

                                                                   . . .

                                                               part 3

                                                                   . . .

15.  The device known as “Brass Knuckles” and any similar device consisting of a band of metal with one or more finger holes designed to fit over the fingers of the hand.

V.  Analysis

A.  Jurisdiction

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

13                               In Dubois v. The Queen, [1986] 1 S.C.R. 366, Estey J. affirmed, at p. 377:

Jurisdictional error is committed where “mandatory provisions” of the Criminal Code  are not followed, and in the context of s. 475 [now s. 548], this means at least that there must be some basis in the evidence proffered for the justice’s decision to commit.

14                               In the decision under review, Laskin J.A. held that it is not a jurisdictional requirement of s. 548(1)(b) that the preliminary inquiry judge consider “the whole of the evidence”.  He stated, at para. 37, that he reached this conclusion because

to accept that a failure to consider “the whole of the evidence” is a jurisdictional error risks turning virtually every error of law into a jurisdictional error.  This would be contrary to numerous authorities, including Dubois, which have held that many errors of law are not jurisdictional.  Indeed, the mere failure to consider relevant evidence has been held by the Supreme Court of Canada not even to amount to an error of law:  see R. v. Morin (1992) . . . .

15                               With respect, Laskin J.A. appears to have taken the reasoning of this Court in Morin out of context.  R. v. Morin, [1992] 3 S.C.R. 286, was not a preliminary inquiry, but a trial.  At p. 297, Sopinka J., for the Court, held that there was no basis for concluding that the trial judge had failed to consider the totality of the evidence in reaching the verdict.  While it is open to the trial judge to assess the quality, credibility and reliability of evidence, a preliminary inquiry judge is prohibited from making such findings:  see R. v. Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54, at para. 30.  As the preliminary inquiry judge correctly stated in this appeal:  “Assessing the quality and reliability of the evidence, or weighing the evidence for competing inferences in determining whether there is sufficient evidence for committal is not permitted at this stage of the proceedings.”

16                               In Forsythe, supra, at p. 272, Laskin C.J. emphasized that the “[m]ere disallowance of a question or questions on cross-examination or other rulings on proffered evidence [in a preliminary inquiry] would not, in [his] view, amount to a jurisdictional error.”

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

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

19                               As Forsythe and Dubois make plain, the failure of a preliminary inquiry judge to comply with a mandatory statutory provision goes to jurisdiction and allows a reviewing court to intervene.

B.  The Reasons of the Preliminary Inquiry Judge

20                               As it is a jurisdictional error for a preliminary inquiry judge to discharge an accused under s. 548(1)(b) without considering “the whole of the evidence”, for the purposes of this appeal, the question that remains is whether or not Serré J. fulfilled this obligation.

21                               While an exhaustive examination of all the evidence is not expected, her finding that the Crown failed to adduce any evidence that the handle of the knife was made of metal is unsupported by the record which reveals a considerable body of circumstantial evidence going to both counts.  The absence of any reference to this circumstantial evidence in the reasons leads me to conclude that she failed to consider the whole of the evidence as required by s. 548(1)(b).  As a result, she committed a jurisdictional error and her decision is subject to review on certiorari.

22                               Serré J. began her reasons, which were delivered orally, by correctly stating the proper legal tests and outlining the role of the preliminary inquiry judge.  She noted that

the test for sufficiency is whether there is any admissible evidence, whether direct or circumstantial, upon which a reasonable jury properly instructed could convict the accused.  [See United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080; Arcuri, supra, at para. 21.]

23                               The jurisprudence of this Court leaves no doubt that a preliminary inquiry judge commits a jurisdictional error by committing an accused for trial under s. 548(1)(a) when an essential element of the offence is not made out: see Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 104; Dubois, supra, at p. 376; Russell, supra, at para. 21.  Conversely, it is not a jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b):  see Arcuri, supra, at paras. 21-23; Russell, supra, at para. 26.  In that situation, it would be improper for a reviewing court to intervene merely because the preliminary inquiry judge’s conclusion on sufficiency differs from that which the reviewing court would have reached:  see Russell, supra, at para. 19.  It is a jurisdictional error, however, for a preliminary inquiry judge to act arbitrarily: Dubois, supra, at p. 377. 

24                               Silence in the reasons alone may not necessarily be sufficient to justify the intervention of a reviewing court.  As this Court has previously held, there must be some rational basis in the record to justify such intervention:  see Macdonald v. The Queen, [1977] 2 S.C.R. 665, at p. 673 (involving reasons from a court martial); and R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, at paras. 29-30 (involving reasons from a trial verdict).

25                               After canvassing the case law, stating the legal rules to be followed and  reciting the charges against the respondent, Serré J. said:

A critical examination of Mr. Campeau’s evidence is warranted to determine whether it registers on the scales as any evidence at all to meet the [Shephard] test.

She then referred to excerpts from the direct and cross-examination of Mr. Campeau that confirmed his description of the knife (“silver with brass-knuckle type four rings that you would put your fingers through to hold on to the handle”), the fact that he never touched the knife or saw the blade, and that by referring to the handle as a “brass-knuckle type”, he was not suggesting that it was made of brass.

26                               Serré J. went on to explain what she found to be her task before stating her conclusion:

Can a Justice draw a reasonable inference from Mr. Campeau’s knowledge of brass knuckles that the device was made of metal?  Mr. Campeau simply identified the shape of the device; the grip of the knife bore four rings; it was silver in colour and could be used in a manner consistent with brass knuckles.

To apply, as suggested by the Crown, every-day meaning to the language on the exchange reproduced above, [i.e., excerpts from Mr. Campeau’s direct and cross-examination] does not lead to the inference that the device was made of metal.  The question on a preliminary inquiry always relates to the ability of the evidence to support a verdict of guilt in the eyes of the dispassionate jury, properly instructed on the law.  The absence of evidence on an essential element will result in a discharge.

There is a distinction to be made between a situation where there is no evidence on an essential element of the charge and one where the evidence proffered suffers from frailties.

This is a clear situation where there was no evidence that the device was made of metal nor was there any evidence upon which a reasonably instructed jury could infer that the device was a prohibited weapon as defined in the regulations.  [First emphasis in the certified transcription; second and third emphasis added.]

Clearly, Serré J. referred only to the testimony of Mr. Campeau and only to his description of the knife.

27                               Laskin J.A. summarized, at paras. 23-24, some of the circumstantial evidence that appears to have not been considered by the preliminary inquiry judge:  (1) the respondent did not make any notes of the incident in his police notebook; (2) the respondent did not make a police report about taking the knife; (3) the respondent did not turn over the knife though asked to do so by the investigating officer; (4) the respondent described the knife as a “jack-knife”; (5) the respondent’s wife arrived at the school upset and became even more upset “as the situation progressed”; (6) Mr. Campeau thought that the knife was “no ordinary knife” and that its presence in the school was as serious as if a gun had been found; (7) Mr. Campeau insisted that the police be called and later acknowledged that it was “not in every situation that the police would necessarily become involved”; (8) Mr. Campeau gave the knife to the respondent because he was a police officer, not because he was a concerned parent; (9) the respondent’s description of the knife was inconsistent with that given by Mr. Campeau.

28                               As a result of her findings on the first count, Serré J. held that “[t]he second count of obstruct justice fails as a matter of course.”  In the Court of Appeal, Laskin J.A., at para. 27, found merit in the argument that

[i]f the knife was not a prohibited weapon the appellant was not required to refer to the incident in his notebook, make out a police report, or even return the knife.  Therefore, the preliminary inquiry judge had no need to consider this circumstantial evidence once she had concluded the evidence was insufficient to show that the knife could be a prohibited weapon.

29                               The second count alleges that the respondent

on or about the 24th day of May 2000 at the Town of Monetville in the said region did wilfully attempt to defeat the course of justice in a judicial proceeding by, while acting in his capacity as a peace officer, failing to report a criminal offence and removing evidence of that offence, contrary to Section 139(2)  of the Criminal Code of Canada .

30                               Mr. Campeau insisted that the police attend the school because of the presence of the knife and the allegations of threats made by the respondent’s son.  The respondent was bound by Ontario Provincial Police duty requirements to complete General Occurrence Reports or other law enforcement forms and to maintain “a daily journal which thoroughly and chronologically details experienced, investigated or reported events and occurrences during each duty period”.  In addition, s. 42 of the Ontario Police Services Act, R.S.O. 1990, c. P.15, also imposes an obligation on police officers to perform those assigned duties.  It is noteworthy that Constable Renauld documented her attendance at the school even though she was under the impression that the respondent was attending to a personal family matter and not a complaint requiring a police investigation.  Considering that the suspect of the complaint was his son, the respondent, understandably, would not have been expected to conduct the ensuing investigation, but he was expected, in the performance of his duties, to secure any evidence, document and report the complaint so that another investigator could be assigned.

31                               I agree with the reviewing judge, Gauthier J., that the preliminary inquiry judge’s finding that the second count “failed as a matter of course” amounted “to a non-assessment of the circumstantial evidence which was before the court”.

32                               The respondent contends that since the testimony of the three Crown witnesses was heard over the course of one day and the preliminary inquiry judge had the benefit of submissions from counsel, not to mention a transcript of the evidence, the fact that she chose to focus on a specific portion of the evidence in her reasons does not suggest that she did so to the exclusion of the other evidence.  This argument, though, cuts both ways.  The evidence was heard on April 17, 2001, written submissions were made later, and oral submissions were presented on May 30.  The decision was rendered on May 31.  Given the time frame and the preponderance of circumstantial evidence, it is equally reasonable to expect that if Serré J. had considered the strength of the inferences that could be drawn from the circumstantial evidence, she would have made some reference to her assessment in the reasons.

33                               Section 548(1)(b) is a mandatory provision.  In addition to Mr. Campeau’s description of the knife there was, as already noted, a mountain of additional circumstantial evidence.  It is evident from the record that the preliminary inquiry judge was aware of this material and had, at times, some of it in her possession.  However, there is nothing in the record or in the reasons of the preliminary inquiry judge that indicates that she considered the whole of the evidence.  There is no requirement for fulsome reasons why evidence at a preliminary inquiry has been rejected, but there must be some indication that the mandatory requirement of the Criminal Code  has been complied with.  The failure to do so results in a loss of jurisdiction.

34                               It is now plain from Canadian jurisprudence that a trial judge is not required to give extensive reasons for a decision, but is bound to indicate what he or she understands the nature of the case to be so that the parties are aware that the case they argued was the one decided:  see Sheppard, supra.  Similarly, a preliminary inquiry judge is not required to render extensive reasons but must demonstrate that he or she met the statutory and mandatory duty to consider the whole of the evidence.  It hardly needs saying that had the proceedings been a trial and not a preliminary inquiry, an acquittal of the respondent for the reasons given by Serré J. not to commit would likely be sustained.  However, the mandatory duty imposed on the judge at a preliminary inquiry to consider the whole of the evidence requires some clear indication that this obligation was met.  In my view, the reasons at issue here do not satisfy this requirement.

35                               I find that the preliminary inquiry judge committed a jurisdictional error on both counts by failing to consider the whole of the evidence before discharging the respondent.

36                               Fish J. concludes at para. 82 that if the preliminary inquiry judge erred at all, “her error concerned the sufficiency of the evidence and was not subject to review on certiorari”.  He postulates at para. 62:

And it is well established that an error as to the sufficiency of the evidence 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. . . .

He then quotes McLachlin C.J. at paras. 28-29 of Russell, supra.  In that passage, McLachlin C.J. clarified that the principles that govern jurisdictional errors are the same, regardless of whether such an error is raised by the Crown or by the accused.  However, the reasons went on to state that practically speaking, the Crown and the accused would face disparate effects of errors as to the essential elements of a crime.  She wrote (at para. 29):

While it is true that the effect of this principle is that errors as to the essential elements of the crime will, as a general rule, be reviewable when challenged by the accused but not when challenged by the Crown, this disparity reflects the balance of harms . . . .  [Emphasis in original.]

37                               As discussed at para. 23 above, when it is the accused who raises a jurisdictional error, he or she will succeed if it can be shown that there was no evidence as to some essential element of the crime.  In referring to disparate effects faced by the Crown and the accused, I read McLachlin C.J. to be referring to the fact that, on the other hand, the Crown cannot demonstrate a jurisdictional error merely by showing that there was some evidence on each essential element of the crime.  This is because it would be improper for the reviewing court to intervene merely because it would have reached a different conclusion from the preliminary inquiry judge as to the sufficiency of the evidence.  However,  a decision as to the sufficiency of evidence is beyond review by certiorari only when it was made by a preliminary inquiry judge who was acting within his or her jurisdiction, pursuant to the mandatory provisions of s. 548.

38                               Fish J. would dismiss the appeal on the basis that the preliminary inquiry judge made a determination as to the sufficiency of the evidence that was within her jurisdiction.  However, under s. 548(1)(b), a preliminary inquiry judge must consider “the whole of the evidence” in order to determine whether “no sufficient case is made out to put the accused on trial”.  In this case, the preliminary inquiry judge did not consider “the whole of the evidence” as mandated by s. 548(1)(b), and such an error is jurisdictional.

VI.  Disposition

39                               I would therefore allow the appeal, set aside the discharge order and remit the matter to the preliminary inquiry judge to consider the whole of the evidence.

The following are the reasons delivered by

40                               Binnie J. (dissenting) _ I agree with Major J., as a matter of law, that the failure of a preliminary inquiry judge to consider “the whole of the evidence” as prescribed by s. 548(1) (b) of the Criminal Code , R.S.C. 1985, c. C-46 , before discharging an accused, would, if established, constitute a jurisdictional error.  Of course, it is the duty of any court or tribunal to consider “the whole of the evidence”.  Nevertheless Parliament has chosen to turn this general duty into a specific statutory condition precedent to the exercise of the power of discharge.  As such, it is mandatory, and failure to comply would result in loss of jurisdiction.

41                               My disagreement with Major J. is on the facts.  As a practical matter, appellate courts should not be too quick to conclude that a preliminary inquiry judge has not considered “the whole of the evidence”.  In the companion case of R. v. Sazant, [2004] 3 S.C.R. 635, 2004 SCC 77, the fatal flaws in the preliminary inquiry judge’s decision appear from what is said in his reasons.  This case is different.  The Crown relies entirely on what is not said.  It is true that the preliminary inquiry judge made no specific mention of the circumstantial evidence.  Nevertheless, as Major J. acknowledges at para. 34, what is required is that the reasons “indicate what he or she understands the nature of the case to be so that the parties are aware that the case they argued was the one decided”.  Here both the Crown and the defence demonstrated in their respective submissions to the hearing judge that they regarded Mr. Campeau’s evidence as the focus of the contending arguments.  Inferences from the subsequent conduct of the accused were secondary.  In R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, we confirmed the duty on trial judges to give reasons adequate for the function they perform, including appellate review, but we also held in R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27 (released at the same time), at para. 25, that in the case of a conviction:

Enough was said in the trial judge’s reasons to show that he came to grips with the issues thus defined by the defence.  His decision ought not to be reversed simply because he did not advert to all of the secondary or collateral circumstances that the respondents say had a bearing on the main issue.

42                               The “main issue” here was whether the alleged prohibited weapon was made of metal, as charged in the information.  The Crown cannot, in fairness, demand a higher and more meticulous standard of reasons in dealing with this issue where the accused has been discharged (or acquitted) than where the accused has been committed (or convicted).  It has not been demonstrated by the Crown that the preliminary inquiry judge likely overlooked the circumstantial evidence now relied upon.  We have no reason to believe she did not consider “the whole of the evidence”.  I would therefore dismiss the appeal.

The following are the reasons delivered by

43                               LeBel J. (dissenting) — Although I concur with Major J. in the companion case R. v. Sazant, [2004] 3 S.C.R. 635, 2004 SCC 77, I agree with Fish J. in the present appeal that the preliminary inquiry judge did not commit any jurisdictional error.  In my opinion, in the circumstances of this case, the appellant did not establish that Serré J. had actually failed to consider the “whole of the evidence”.  Such a failure would have been a jurisdictional error, whether it resulted in an improper discharge or an unwarranted committal.  For these reasons, I would dismiss the appeal.

The following are the reasons delivered by

Fish J. (dissenting) —

I.  Overview

44                               Douglas Deschamplain, the respondent, was discharged at the conclusion of his preliminary inquiry on both counts of an information laid against him under the Criminal Code , R.S.C. 1985, c. C-46 .  The first count was for possession of “a prohibited weapon, to wit a brass knuckle knife”; the second, for obstructing justice by “failing to report a criminal  offence and removing evidence of that offence”.

45                               It is common ground that Mr. Deschamplain could not properly be committed to trial on the first count in the absence of some evidence upon which a jury could reasonably conclude that the handle of the “brass knuckle knife” (or band to which the “knuckle holes” were attached) was made of metal.  As Laskin J.A. explained in the court below:

Not every knife is a prohibited weapon.  Section 84(1) of the Code defines a “prohibited weapon” as “(b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon”.  Those weapons prescribed to be  prohibited are listed in Regulation SOR/98-462.  In this case the relevant provision of the Regulation is part 3, section 15, which prescribes as prohibited “[t]he device known as ‘Brass Knuckles’ and any similar device consisting of a band of metal with one or more finger holes designed to fit over the fingers of the hand”.  [Emphasis in original.]

((2003), 173 C.C.C. (3d) 130, at para. 16)

46                               It is common ground as well that Mr. Deschamplain could not be committed on the second count unless he was also committed on the first: if the evidence was insufficient to establish possession of a prohibited weapon, Mr. Deschamplain could hardly be sent to trial for failing to report that offence or for removing evidence of its commission.

47                               In this case, the respondent, Mr. Deschamplain, had admitted possession of the knife.  His committal to trial on both counts therefore depended on whether the evidence, in the opinion of the justice, was sufficient to support a reasonable inference that the handle of the knife was “made of metal”, in the sense mentioned above.  After studying the transcript, considering the submissions of counsel, and reserving the matter overnight for deliberation and decision, Serré J. answered that question in the negative and discharged Mr. Deschamplain.

48                               Section 548(1)  of the Criminal Code  provides:

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

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

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

49                               The governing principles are well established.  The decision of the justice to commit or to discharge is not appealable.  It is, however, reviewable on certiorari, but only for excess of jurisdiction.  An error as to the sufficiency of the evidence is not reviewable on certiorari except where it results in a committal to trial in the absence of any evidence capable of supporting a conviction.  Nor is the failure of a justice to explicitly advert to relevant and admissible evidence, whether wrongly excluded or properly admitted.  In some instances, errors of this sort may be appealed as errors of law: see, for example, ss. 675 , 676 , 691  and 693  of the Criminal Code .  At the preliminary inquiry, however, they are neither appealable nor reviewable on certiorari.

50                               Looking beyond the form to the substance of the matter, the Crown’s attack on Serré J.’s decision amounts, in my respectful view, to an appeal that does not lie, dressed up as a prerogative remedy that cannot fly.  The Superior Court of Justice nonetheless found that Serré J. had exceeded her jurisdiction and therefore granted certiorari.  In the opinion of the reviewing judge, there was direct evidence that the knife in question here was a prohibited weapon.  The Crown acknowledged in the Court of Appeal that the reviewing judge, on this point, was wrong.

51                               The decision of the Superior Court was in turn set aside by the Court of Appeal for Ontario.  Speaking for a unanimous court, Laskin J.A. held that Serré J. did not exceed her jurisdiction in discharging the respondent. Major J. would allow the Crown’s present appeal against that judgment.

52                               I agree with Major J. (at para. 22) that Serré J. “correctly stat[ed] the proper legal tests and outlin[ed] the role of the preliminary inquiry judge”.  With respect, however, I do not share his conclusion (at para. 35) that Serré J. exceeded her jurisdiction “by failing to consider the whole of the evidence before discharging the respondent”.

53                               This conclusion rests, ultimately, on the omission of Serré J. to mention explicitly in her reasons certain elements of circumstantial evidence.  On this issue, able and experienced Crown counsel stated on the hearing of the appeal that she could not even make this argument if Serré J. “[had] said anywhere in her reasons: I’ve considered all of the other evidence_.

54                               The failure of Serré J. to include this sort of generalized assertion in her reasons, delivered orally, does not persuade me that she failed to consider all of the evidence before deciding to discharge the respondent; on the contrary, the Crown’s reliance on this purportedly fatal “omission” simply exposes the frail foundation of the Crown’s appeal.

55                               I shall later explain in some detail why I am not persuaded that Serré J. failed to consider all of the evidence.  It appears to me, rather, that she did not explicitly set out the circumstantial evidence mentioned by Major J. because she did not consider it probative on the only decisive issue before her: whether the knife that the respondent had in his possession at the relevant time was a “prohibited weapon” within the meaning of the Criminal Code  (s. 84(1) ). That depended on the composition of its handle.  Serré J. evidently agreed with defence counsel that the circumstantial evidence set out in my colleague’s reasons could not support a rational conclusion that the handle of the knife was made of metal, as required by the relevant regulation (SOR/98-462, Part 3, s. 15).

56                               But even if Serré J. was mistaken in this regard, her error related to the sufficiency of the evidence.  And, as I have already mentioned, it is well established that an error as to the sufficiency of the evidence is not reviewable on certiorari.

57                               For these reasons and the reasons that follow, I would dismiss the appeal.

II.  Review for “Jurisdictional Error”

58                               An erroneous committal or discharge, I again emphasize, is not appealable and is only reviewable on certiorari for want or excess of jurisdiction.  Estey J., speaking for the majority in Skogman v. The Queen, [1984] 2 S.C.R. 93, thus explained (at p. 100):

It is clear . . . that certiorari remains available to the courts for the review of the functioning of the preliminary hearing tribunal only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction . . . .  It need only be added by way of emphasis that such certiorari review does not authorize a superior court to reach inside the functioning of the statutory tribunal for the purpose of challenging a decision reached by that tribunal within its assigned jurisdiction on the ground that the tribunal committed an error of law in reaching that decision, or reached a conclusion different from that which the reviewing tribunal might have reached.

See also Forsythe v. The Queen, [1980] 2 S.C.R. 268; R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53; Dubois v. The Queen, [1986] 1 S.C.R. 366.

59                               Major J. finds that the justice in this case committed a “jurisdictional error” in failing to take into account some of the evidence adduced before her.  In my colleague’s view, this omission violated a “mandatory provision of the Criminal Code ”, within the meaning of Doyle v. The Queen, [1977] 1 S.C.R. 597; Dubois, supra; and Forsythe, supra, in that s. 548(1)(b) of the Code requires a preliminary inquiry justice to “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 . . .” (emphasis added).

60                               In this regard, Laskin J.A. stated (at para. 36):

I acknowledge that in . . . Dubois [at p. 377], Estey J. wrote that “[j]urisdictional error is committed where ‘mandatory provisions’ of the Criminal Code  are not followed” and that the requirement in s. 548(1)(b) to consider “the whole of the evidence” before discharging the accused could be characterized as “mandatory”.  It seems to me, however, that for several reasons, failing to comply with this kind of provision cannot amount to jurisdictional error. [Emphasis added.]

61                               Laskin J.A. then proceeded to explain why the omission of a justice to take into account some of the relevant evidence, even when viewed as a failure to comply with s. 548(1)(b), will not for that reason amount to a jurisdictional error subject to review on certiorari.

62                               As we shall soon see, I am not persuaded at all that the justice in this case failed to consider the circumstantial evidence mentioned by Major J.  In my view, the error imputed by the Crown to Serré J. in this regard amounts, at its highest, to an error as to the sufficiency of the evidence taken as a whole.  And it is well established that an error as to the sufficiency of the evidence 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.  As McLachlin C.J., speaking for a unanimous Court, explained in Russell, supra, at paras. 28-29:

The Crown’s argument here is that under the “parity” principle of Dubois, if a preliminary judge’s error as to the elements of a crime is unreviewable when challenged by the Crown (as the Crown contends is the law under Tremblay), that kind of error must also be unreviewable when challenged by the accused.  The Crown argues that “the availability of certiorari does not turn on the identity of the party seeking that relief, but rather on the nature of the alleged error”.  I find nothing objectionable in that assertion, but I cannot see how it warrants the conclusion that the alleged error in this case is unreviewable on certiorari.  The fault lies in the Crown’s characterization of the error as “an alleged misinterpretation of the elements of the offence”.  When characterized this way, it is indeed difficult to see how it can be that the accused can challenge such an error though the Crown cannot.  The logic becomes clear, however, once the rule is framed, as it should be, in terms of the jurisdiction of the preliminary inquiry judge:  whether the error is challenged by the Crown or by the accused, an error is reviewable on certiorari only if it is jurisdictional.  If it is not jurisdictional, no recourse to certiorari may be had.  It is not the fact that it is the accused seeking certiorari here that makes the error reviewable.  It is the fact that the error is jurisdictional.

The discrepancy that troubles the Crown is not, in my view, disturbing.  As I note above, the governing principle is the same whether an error is challenged by the Crown or by the accused.  While it is true that the effect of this principle is that errors as to the essential elements of the crime will, as a general rule, be reviewable when challenged by the accused but not when challenged by the Crown, this disparity reflects the balance of harms: a wrongful discharge does not raise the possibility of a violation of s. 7  of the Canadian Charter of Rights and Freedoms ; by contrast, I think it clear that committing an individual to stand trial on a charge for which there is no evidence on one of the essential elements would violate the principles of fundamental justice.  I note, moreover, that in circumstances such as were at issue in Tremblay, the Crown is free, subject to the requirements of s. 577  of the Criminal Code , to lay a new information or prefer an indictment.  There is no analogous remedy available to the accused.  [Emphasis in original.]

63                               I take care not to be understood to have decided here that a failure to consider relevant evidence will never amount to reviewable error.  With respect, however, I do not subscribe to a jurisdictional distinction in this regard between preliminary inquiries and summary trials, for example — which are almost everywhere in Canada generally conducted by the very same judges — or between common law courts and courts created by statute.  A superior court is, of course, vested with discretionary prerogatives not shared by statutory courts and tribunals.  In my view, however, it enjoys no exclusive or inherent powers regarding an omission to consider relevant evidence.

64                               As Laskin J.A. noted, this Court, in R. v. Morin, [1992] 3 S.C.R. 286, has held that the failure of a trial judge to consider relevant evidence will not necessarily amount to an error of law.  Delivering the judgment of the Court in Morin, Sopinka J. put the matter this way: “[f]ailure to appreciate [all of] the evidence cannot amount to an error of law unless the failure is based on a misapprehension of some legal principle” (p. 295).  This rule, it appears, would apply even where “the trial judge [has] failed to appreciate important evidence”: see R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, at para. 47 (emphasis added).

65                               The error imputed in this case to Serré J. was not “based on a misapprehension of some legal principle”.  Assuming, in this context only, that Serré J. did indeed fail to appreciate some of the relevant evidence, as alleged by the appellant,  I find it unnecessary to decide whether this constituted an error in law within the meaning of Morin, supra.  I think it sufficient to say that she did not thereby commit a jurisdictional error giving rise to certiorari.

III.  Serré J.’s Consideration of Evidence

66                               The appellant, I repeat once more, has failed to persuade me that Serr_ J. discharged the respondent without considering the whole of the evidence.

67                               It is undisputed that Serré J., before concluding that the evidence was insufficient to warrant a committal for trial, instructed herself correctly as to the role of a justice at a preliminary inquiry.  Moreover, she instructed herself impeccably as to the test for sufficiency as it related specifically to the offences charged in both counts.

68                               The Crown contends that Serré J. examined some but not all of the evidence capable of supporting a committal and thereby exceeded her jurisdiction in discharging the respondent.  Specifically, the appellant relies on Serr_ J.’s question, “Can a Justice draw a reasonable inference from Mr. Campeau’s knowledge of brass knuckles that the device was made of metal?” (emphasis in original), to support the conclusion that Serré J. considered only the evidence of Guy Campeau, while ignoring other circumstantial evidence that could support a finding that the object was a prohibited weapon.  Major J. has reviewed that other circumstantial evidence, much of which relates to the respondent’s “subsequent conduct”, in considerable detail and there is thus no need for me to do so again here.

69                               The appellant’s argument fails for at least four reasons.

70                               First, we are not entitled to assume from the justice’s silence regarding a particular piece of evidence that she has not considered that evidence as she is required by s. 548(1)(b) to do.  I think it more plausible to infer that Serré J. simply found that the evidence not explicitly mentioned by her had no significant probative value and, therefore, no impact on the sufficiency of the evidence taken as a whole.

71                               A reviewing court must take care not to fill with presumptively adverse assumptions the gaps it sees in the reasons given by a justice at the conclusion of a preliminary inquiry.  Here, there is no basis for supposing, because Serré J. mentioned the strongest evidence relied on by the prosecution, that she overlooked or “failed to consider” other evidence that may be thought by some to have a bearing on that issue.  On my reading of the record, it is more likely by far that these other items of evidence, individually or collectively considered, could not in her opinion reasonably support an inculpatory finding on the one critical issue in the case as it had unfolded before her: whether the “brass knuckle knife” Mr. Deschamplain admittedly had in his possession was a prohibited weapon within the meaning of the Criminal Code .

72                               Second, there is some indication in Serr_ J.’s reasons, delivered orally, that she did in fact assess the circumstantial evidence adduced by the Crown, and found it to be insufficient to warrant a committal.  The question relied upon by the appellant must be taken in the context of Serr_ J.’s reasons read as a whole.  Serré J. dealt with the Crown’s evidence on the composition of the “brass knuckle knife” as follows:

Counsel for the prosecution invites the Court to safely act on the evidence of Guy Campeau and commit the accused to trial.

Crown Counsel submits that the Court can draw from the record and from the application of the common usage of the language given to the phrase ‘brass knuckle’, a reasonable inference to commit.

Counsel for the defence argues that the Crown is engaging in conjecture, and that it is insufficient for a committal that the inferences which Crown counsel asks the Court to draw leads to speculative rather than logical and precise inferences of guilt objectively grounded in evidence. . . .

Can a Justice draw a reasonable inference from Mr. Campeau’s knowledge of brass knuckles that the device was made of metal?  Mr. Campeau simply identified the shape of the device; the grip of the knife bore four rings; it was silver in colour and could be used in a manner consistent with brass knuckles. [First, second and third emphasis added; fourth emphasis in certified transcript.]

73                               In this regard, I find it helpful to reproduce here a relevant extract from the reasons of Laskin J.A. in the Court of Appeal (at paras. 7-8):

The box with the knife in it was turned over to one of the teachers at the school, Guy Campeau.  Mr. Campeau took the box back to his office, opened the lid, and looked at the knife.  At the preliminary hearing he testified that the knife was “silver with brass knuckle type four rings that you would put your finger through to hold onto the handle”.  On cross-examination he acknowledged that he never took the knife out of the box or even touched it.  He also acknowledged that although he described the knife as a “brass knuckle type knife” he was not suggesting that it was made of brass. . . .

Mr. Campeau was not asked, either on direct examination or on cross-examination, whether either the four rings or the handle to which they were attached was made of metal.

74                               While Serré J. did focus her attention on the evidence of Mr. Campeau, she also adverted to the Crown’s submissions regarding reasonable inferences that could be drawn from the record.  Serr_ J.’s assessment of the sufficiency of this body of evidence was within her jurisdiction: she was entitled — indeed, required — to determine what inferences it could reasonably support, and she was entitled to conclude, as she did, that those inferences were speculative in nature.

75                               Third, it is not at all surprising that the justice, in giving her reasons, focussed on the evidence of Mr. Campeau.  Crown counsel, in his submissions relating to the composition of the weapon, referred Serr_ J. exclusively to the teacher’s testimony:

Mr. Campeau in his evidence, and perhaps the better way of doing this is taking it to the defendant’s written submissions.  This would be found at page 7.  He describes it was silver, brass knuckle type, 4 rings that you could put your finger through to hold on to the handle and then at the bottom of page 7 he says “I’ve never seen brass knuckles before but from what I know of them you slide your 4 fingers into a grip and you hold on to it this way.”  Then I got him to describe the fact that he held it up with his fist closed and in my respectful submission that is sufficient evidence for these purposes.

Counsel went on to discuss the importance of the other circumstantial evidence, particularly the respondent’s “subsequent conduct”, in relation to the respondent’s state of mind and with respect to the obstruction of justice charge.  As I have mentioned, however, it is conceded that a committal for obstruction could not stand in the absence of a committal on the count for possession of a prohibited weapon.

76                               Crown counsel was most familiar with the theory of his case, the relative importance of the various pieces of evidence, and the viability of the inferences to be drawn from them.  The claim of the defence to a discharge rested on an assertion that there was no evidence upon which a trier of fact could reasonably find that the knife in question was a prohibited weapon.  Understandably, Crown counsel, in responding to that submission, relied on the testimony of Mr. Campeau concerning the appearance of the knife, rather than on the more speculative and tenuous evidence of “subsequent conduct”.  It is hardly surprising that Serr_ J. likewise thought it unnecessary to do so.  Instead, she dealt in detail with what the Crown itself evidently (and correctly) considered to be its strongest and most significant evidence in relation to the nature of the weapon.  In my view, Serré J. committed no jurisdictional error in doing so.

77                               Finally, as I mentioned earlier, the preliminary inquiry in this case was not conducted in a disjointed or hurried manner, and the disposition was not reached precipitously or without reflection.  Serr_ J. heard all the Crown’s evidence together and on the same day.  She then adjourned for six weeks before hearing submissions with the benefit of a full transcript of the evidence.

78                               In their submissions, both counsel drew Serr_ J.’s attention to the circumstantial evidence adduced by the Crown, including the respondent’s “subsequent conduct”.  Understandably, they offered differing assessments of the import of that evidence.  Moreover, they related it essentially to the respondent’s state of mind rather than to the composition of the “prohibited weapon”.  Serr_ J. then adjourned until the next morning, with the transcript of the evidence in hand, in order to “review the submissions of counsel, together with the case law that has been provided”.

79                               As a general rule, the reasons set out in a judge’s decision provide the safest measure of what was in the judge’s mind when that decision was rendered.  Earlier comments, particularly if they are remote in time or expressed in evidently tentative terms, are of little value in determining the soundness of the judgment.  This, however, does not entitle a reviewing court to assume that evidence canvassed by opposing counsel in their extensive and detailed submissions vanished overnight from the judge’s realm of contemplation.  And I would not do so here.

80                               As McLachlin J. has stated in another context, “[t]he fact that a trial judge misstates himself at one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence”: R. v. B. (C.R.), [1990] 1 S.C.R. 717, at p. 737.  This Court should show no less deference in reviewing the decision of a justice to discharge at the conclusion of a preliminary inquiry. 

81                               This is especially so where, as here, the preponderance of what transpired before the justice, and what she expressly stated, amply demonstrate that she understood and considered all of the relevant issues.  More particularly, it is clear from the record that Serré J. was perfectly aware of the limited nature of her task, of the test she was to apply in discharging it, of the essential elements of the offences charged and of the evidence relied on by the prosecution to establish those elements.

82                               If Serr_ J. erred at all, it was, of course, not in “misstating” herself, but rather in failing to refer explicitly to some of the circumstantial evidence which may be thought by others to have warranted a committal to trial.  Here, I repeat, Serré J. heard all the relevant evidence, received and examined a transcript of that evidence, considered it in the light of counsels’ submissions, adjourned to consider the evidence and to review the governing principles, and set out flawlessly the law governing her role in determining whether to commit for trial.  I think it both right and fair to assume that she proceeded to apply the principles she had so carefully set out.  I see no basis for assuming the opposite.  If she nonetheless erred in the result, her error concerned the sufficiency of the evidence and was not subject to review on certiorari.

IV.  Conclusion

83                               For all of the foregoing reasons and with respect for the contrary conclusion of Major J., I would therefore, as stated at the outset, dismiss the appeal.

Appeal allowed, Binnie, LeBel and Fish JJ. dissenting.

Solicitor for the appellant:  Attorney General of Ontario, Toronto.

Solicitors for the respondent:  Kelly Jennings & Lacy, Toronto.