



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 539(1), (2), (3) or (4) of the
Criminal
    Code
shall continue.
    These sections of the
Criminal Code
provide:

539(1)          Prior to
    the commencement of the taking of evidence at a preliminary inquiry, the
    justice holding the inquiry

(a) may, if application
    therefor is made by the prosecutor, and

(b) shall, if application therefor is
    made by any of the accused,

make an order directing that the evidence
    taken at the inquiry shall not be published in any document or broadcast or
    transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand
    trial, the trial is ended.

(2)     Where an accused
    is not represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)     Everyone who
    fails to comply with an order made pursuant to subsection (1) is guilty of an
    offence punishable on summary conviction

(4)      [Repealed,
    2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s.
    539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Adem, 2022 ONCA 24

DATE: 20220113

DOCKET: C69549 & C69555

van Rensburg, Paciocco, and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Samir Adem and Salman Ahmed

Appellants

R. Craig Bottomley and Andrea
    VanderHeyden, for the appellant Samir Adem

Ariel Herscovitch, for the appellant
    Salman Ahmed

Gavin MacDonald, for the respondent

Heard: January 10, 2022 by
    video conference

On appeal from the order of Justice Suhail
    A.Q. Akhtar of the Superior Court of Justice, dated June 3, 2021 granting
    certiorari setting aside the order of Justice Michael Callaghan of the Ontario
    Court of Justice, dated November 27, 2020.

REASONS FOR DECISION

[1]

A preliminary inquiry judge committed Samir Adem
    and Salman Ahmed to trial on charges of second degree murder, contrary to s. 231(7)
    of the
Criminal Code
, R.S.C. 1985, c. C-46. The Crown had sought their
    committal on charges of first degree murder, pursuant to the constructive first
    degree murder provision in s. 231(5)(e) of the
Criminal Code
, on the
    theory that they murdered the victim while committing the offence of unlawful confinement
    against him, contrary to s. 279 of the
Criminal Code
. The preliminary
    inquiry judge declined to commit on first degree murder, concluding that although
    the evidence established a
prima facie
case against Mr. Adem and Mr.
    Ahmed for the offence of murder, he was unable to find a reasonable inference [that
    the victim] was forcibly confined. In coming to this conclusion, he found that
    there was an evidentiary gap which leaves the inference unsupportable. He
    therefore concluded that the Crown had not led sufficient evidence upon which
    a properly instructed jury could reasonably infer that Samir Adem and Salman
    Ahmed are guilty of the first degree murder of [the victim] by operation of s.
    231(5)(e).

[2]

The Crown brought a successful application for
    judicial review in which the reviewing judge found that the preliminary inquiry
    judge committed each of the three forms of jurisdictional error identified by
    Major J. in
R. v. Sazant
, 2004 SCC 77, [2004] 3 S.C.R. 635, at para.
    25, namely, (1) he misunderstood the elements of the offence, (2) he preferred an
    inference favourable to the accused over an inference favourable to the Crown,
    and (3) he failed to consider the whole of the evidence. The reviewing judge quashed
    the preliminary inquiry judges order to discharge the first degree murder
    charge and directed the preliminary inquiry judge to commit Mr. Adem and Mr.
    Ahmed on that charge.

[3]

After oral argument, we allowed Mr. Adem and Mr.
    Ahmeds appeal from the reviewing judges decision, with reasons to follow.
    These are our reasons for concluding that the reviewing judge erred in finding
    that the preliminary inquiry judge committed jurisdictional error. In our view,
    the reviewing judge erroneously substituted his own view of the evidence for that
    of the preliminary inquiry judge, which he was not entitled to do, after
    incorrectly identifying jurisdictional errors in the preliminary inquiry
    judges decision.

[4]

In providing these reasons we will be
    circumspect in referring to the specific evidence, as it is unnecessary to
    recount it to explain our decision, and we want to avoid undermining the publication
    ban that is in force relating to the evidence provided during the preliminary
    inquiry. Suffice it to say that the Crown identified preliminary inquiry
    evidence before us that was arguably capable of yielding a reasonable conclusion
    that the victim was subject to a separate and distinct unlawful confinement at
    the time he was shot to death. However, even if the preliminary inquiry judge erred
    in finding that no such evidence existed, this was not a jurisdictional error, but
    instead, an error committed within his jurisdiction. As Major J. reaffirmed in
R.
    v. DesChamplain
, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23:

[I]t 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.

[5]

Although the reviewing judge quoted from this
    passage from
DesChamplain
and correctly expressed the limitations of
    his own jurisdiction to interfere in the preliminary inquiry judges decision, as
    indicated, he went on to err when identifying jurisdictional errors.

[6]

First, his conclusion that the preliminary
    inquiry judge misunderstood the elements of the offence of unlawful confinement,
    thereby failing to evaluate the Crowns evidence against the correct position
    in law, cannot stand. In the course of his decision, the preliminary inquiry
    judge correctly identified the elements of the offence. In finding that the
    preliminary inquiry judge nonetheless misunderstood those elements, the
    reviewing judge focused on a passage in which the preliminary inquiry judge listed
    evidence that was not available on the record. When that passage is read in
    context it is evident that the preliminary inquiry judge was not misidentifying
    missing elements of the offence, but instead illustrating the kind of evidence
    that could have filled the evidentiary gap he found relating to the elements he
    had correctly identified.

[7]

Second, the reviewing judges conclusion that the
    preliminary inquiry judge ignored a reasonable inference favourable to the
    Crown mischaracterizes his decision. The preliminary inquiry judge refused to
    commit Mr. Adem and Mr. Ahmed to trial on first degree murder based on his
    conclusion that there was no evidence from which an inference of unlawful
    confinement could be drawn, not because he preferred a competing inference that
    favoured the defence.

[8]

Moreover, the reviewing judge based his finding that
    the preliminary inquiry judge erroneously preferred an inference favourable to
    the defence to an inference favourable to the Crown on his own conclusion that
    there was evidence that supported an inference of unlawful confinement. If such
    reasoning is correct, a jurisdictional error would occur in any case where the
    reviewing judge identifies an inference that would enable committal that the
    preliminary inquiry judge failed to identify. Such an approach would defeat the
    distinction between jurisdictional errors and those ordinary errors that occur
    where the preliminary inquiry judge mistakenly concludes that there is
    insufficient evidence for committal. Put simply, in order to commit
    jurisdictional error based on drawing inferences in favour of the defence over those
    in favour of the Crown, a preliminary inquiry judge must engage in weighing
    competing inferences to determine which inference is more compelling. The
    preliminary inquiry judge did not do so in this case.

[9]

Third, the reviewing judges conclusion that the
    preliminary inquiry judge failed to consider the whole of the evidence is
    predicated on the failure by the preliminary inquiry judge to refer expressly when
    describing the gap in the evidence to evidence that the reviewing judge
    believed could fill that gap. However, the preliminary inquiry judge furnished
    a comprehensive articulation of his duty to consider the whole of the evidence.
    The preliminary inquiry judge also referred on more than one occasion in the
    course of his decision to the evidence that the reviewing judge erroneously concluded
    that he failed to consider. When the whole of the preliminary inquiry judges
    decision is examined, it is evident that he did not mention this evidence when
    describing the gap in the Crowns case for committal on the charge of first
    degree murder because he did not find that this evidence supported an inference
    of unlawful confinement. If this conclusion by the preliminary inquiry judge
    was an error, it was the very form of non-jurisdictional error that the reviewing
    judge had earlier conceded he could not interfere with, namely, a finding that
    the Crowns evidence was insufficient.

[10]

For these reasons, we allowed the appeal,
    quashed the decision of the review judge, and reinstated the committal for
    trial on second degree murder of both appellants.

K. van Rensburg J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


