



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackson, 2016 ONCA 736

DATE: 20161007

DOCKET: C61836 and C62227

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

C61836

Her Majesty the Queen

Appellant

and

Andrew Jackson

Respondent

AND BETWEEN

C62227

Her Majesty the Queen

Respondent

and

Andrew Jackson

Appellant

Alex Alvaro, for the appellant Crown in C61836

Jeff Carolin and Candice Suter, for the respondent,
    Jackson in C61836

Apple Newton-Smith and Mark Halfyard for the intervener,
    Criminal Lawyers Association (Ontario)

Jeff Carolin and Candice Suter, for the appellant,
    Jackson in C62227

Alex Alvaro, for the respondent Crown in C62227

Heard:  September 19, 2016

On appeal from the order of Justice Anne M. Molloy of the
    Superior Court of Justice, dated February 11, 2016, granting
certiorari
and quashing the order of Justice Rebecca Rutherford of the Ontario Court of
    Justice, dated March 12, 2015, and directing a committal for trial on the
    charge of manslaughter, with reasons reported at 2016 ONSC 1069.

Doherty J.A.:


I



[1]

Andrew Jackson was committed for trial on a charge of second degree
    murder.  On a
certiorari
motion, a Superior Court judge quashed the
    committal and substituted a committal for trial on the charge of manslaughter. 
    The Crown appealed, contending that the Superior Court judge erred in quashing
    the committal on the second degree murder charge.  Jackson appealed, alleging
    that the Superior Court judge erred in not discharging Jackson entirely.

[2]

There were two live issues at the preliminary inquiry:

·

Was Mr. Jackson the person who stabbed and killed Matthew Archibald?
    [the identity issue]

·

If Mr. Jackson was the person who stabbed and killed Mr.
    Archibald, did he have the
mens rea
required for murder under s.
    229(a) of the
Criminal Code
? [the intent issue]

[3]

The preliminary inquiry judge held that the evidence proffered on both issues
    met the test for committal for trial and committed Mr. Jackson on the charge of
    second degree murder.

[4]

The Superior Court judge deferred to the preliminary inquiry judges
    assessment of whether the evidence supported a finding against Mr. Jackson on
    the identity issue, but held that the inference of the
mens rea
for
    murder, as required under s. 229(a), could not reasonably be drawn from the
    evidence.  Consequently, she quashed the committal on the charge of murder and
    substituted a committal for manslaughter.

[5]

At the end of oral argument, the court indicated that the Crowns appeal
    would be allowed and Mr. Jacksons appeal dismissed, thereby restoring the
    committal on the charge of second degree murder.  The court indicated that
    reasons would follow.  These are those reasons.


II



the test for committal

[6]

Fifteen years ago in
R. v. Arcuri
, 2001 SCC 54, [2001] 2 S.C.R.
    828, McLachlin C.J. described the test to be applied by a preliminary inquiry
    judge in deciding whether to commit for trial pursuant to s. 548(1) as well-settled. 
    A preliminary inquiry judge must decide whether a properly instructed jury,
    acting reasonably, could convict on the evidence adduced at the preliminary
    inquiry.  If the evidence relied on by the Crown is circumstantial, the
    preliminary inquiry judge must weigh the evidence in a limited sense to
    determine whether the evidence is reasonably capable of supporting the inferences
    that the Crown relies on to establish the essential elements of the offence:
Arcuri
,
    at paras. 1, 29-30.

[7]

In conducting this limited weighing, the preliminary inquiry judge takes
    the case for the Crown at its highest, meaning she accepts the credibility of
    the evidence relied on by the Crown and assumes the reasonable inferences from
    the primary facts that are most favourable to the Crown:
R. v. Sazant
,
    2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18;
R. v. Foster
(2008), 76
    W.C.B. (2d) 769, at para. 31 (Ont. S.C.); and
R. v. Howells
, 2009 BCCA
    460, 85 W.C.B. (2d) 370, at paras. 13-14.

[8]

If the preliminary inquiry judge decides that on a view of the evidence most
    favourable to the Crown, the circumstantial evidence could reasonably support
    the inferences necessary to establish guilt, she must commit the accused for
    trial.  It is irrelevant that the evidence also supports inferences
    inconsistent with guilt.

[9]

R. v. Russell
, 2001 SCC 53, [2001] 2 S.C.R. 804, released the
    same day as
Arcuri
and also authored by the Chief Justice,
    demonstrates the proper analysis in cases where the evidence relied on by the
    Crown to commit is circumstantial and admits of inferences consistent with and inconsistent
    with guilt.  In
Russell
, the accused was charged with constructive
    first degree murder.  The Crown alleged that he murdered a man named Whittaker in
    the course of the unlawful confinement of another person (Seccombe).  The facts
    raised the question whether the constructive first degree murder provision
    applied if the person murdered was not the person confined.  The court held
    that the section could apply as long as there was a close connection temporally
    and causally between the confinement and the murder.

[10]

The
    court then turned to whether the evidence led at the preliminary inquiry was
    sufficient to justify the committal on the constructive first degree murder
    charge.  McLachlin C.J. said, at para. 48:

With this in mind, I cannot conclude that the committal of the
    accused was unwarranted.  While the jury would be entitled to find that the
    appellants intention in confronting Whittaker was entirely independent of the forcible
    confinement of Seccombe  indeed, the apparent animosity between the appellant
    and Whittaker might support such a conclusion  the jury would
equally
be entitled to conclude that the appellant
    murdered Whittaker to facilitate his forcible confinement of Seccombe, or that
    the appellant forcibly confined Seccombe to facilitate his murder of
    Whittaker.  [Emphasis added.]

[11]

The Chief Justice makes it clear that evidence at the preliminary
    inquiry that is equally capable of supporting two reasonable inferences, one
    consistent with guilt and the other inconsistent with guilt, requires that the
    accused be committed for trial.  The Superior Court judge in this case indicated
    otherwise at various points in her analysis (see e.g. paras. 20, 25, 26).  The
    Superior Court judge confused cases in which the circumstantial evidence read
    at its strongest for the Crown could not reasonably support an inference of
    guilt (see e.g.
United States of America v. Huynh
(2005), 200 C.C.C.
    (3d) 305 (Ont. C.A.)), with cases in which the evidence could reasonably
    support inferences necessary to a finding of guilt or inferences inconsistent
    with guilt: (see e.g.
Russell
).  The preliminary inquiry judge must
    discharge if the evidence falls into the first category of cases, but must
    commit for trial if the evidence falls into the second category.

[12]

The
    distinction between evidence that cannot reasonably support the inferences necessary
    to establish the Crowns case and evidence that can support competing
    inferences including an inference of guilt can be hopefully made clear with two
    examples using facts similar to this case.  In the first case, assume that the
    Crowns evidence consists of testimony that A and B were in the room with
    the deceased immediately before he was killed.  No one else was in the room,
    and there was no evidence of any joint enterprise between A and B.  On this
    evidence nothing points to A as opposed to B as the killer.  It would be
    unreasonable for a jury to infer from As presence in the room (the primary
    fact) the further fact that he was the killer.  A must be discharged at the
    preliminary inquiry.

[13]

In
    the second example, assume again that A and B were the only people in the
    room with the deceased immediately before he was killed and that there is no
    evidence of joint enterprise.  There was evidence that as the police arrived
    moments later, A was seen leaving the room with the weapon used to kill X
    secreted upon his person.  There was also evidence that B had been involved
    in a loud verbal altercation with X immediately before the killing.

[14]

On
    this evidence, one could reasonably infer from As presence in the room and
    his departure from the room immediately after with the weapon used to kill X in
    his possession, that A had killed X.  One might also infer based on Bs
    presence in the room and the prior altercation with X, that B had killed X.
     On the evidence described in the second scenario the evidence supports two
    reasonable conclusions, one of which is that A killed X.  A preliminary
    inquiry judge would be required to commit A for trial.

[15]

Given
    the nature of the decision the preliminary inquiry judge must make when
    deciding whether to commit, I see no value in reference to
Hodges Case
(1838), 2 Lewin 227.  The often cited passage from
Hodges Case
provides
language that may be used in a
    jury instruction to assist a jury in applying the reasonable doubt standard to
    circumstantial evidence, and to alert the jury to the dangers of leaping too
    quickly to conclusions based on circumstantial evidence: see
R. v.
    Villaroman
, 2016 SCC 33.  Neither concern is germane to the function of
    the preliminary inquiry judge at the end of the preliminary inquiry.  Inserting
    the jury instruction language from
Hodges Case
into the analysis
    required to determine whether an accused should be committed for trial is
    confusing and potentially misleading.


III



the test on a motion to quash

[16]

On
    a motion to quash a committal for trial, the reviewing judge has a very narrow
    responsibility. She is charged only with the responsibility of determining
    whether the preliminary inquiry judge acted within her jurisdiction in
    committing for trial.  The reviewing judge does not make her own assessment of
    whether the evidence could justify a committal for trial, but asks only whether
    there was any evidence at all upon which the preliminary inquiry judge could form
    her opinion that the test for committal had been met: see
R. v. Manickavasagar
(2004), 60 W.C.B. (2d) 508 (Ont. C.A.)
;
    and
R. v. Tuske
, 3 W.C.B. 4 (Ont. C.A.).

[17]

Turning
    first to the identity issue, there was evidence that Mr. Jackson was involved
    in a physical altercation with Mr. Archibald immediately before Mr. Archibalds
    death.  There was also evidence that Mr. Jackson was arrested leaving the apartment
    with a knife up his sleeve.  Mr. Jacksons conduct suggested he was attempting
    to flee the scene with the weapon that had been used to kill Mr. Archibald
    before the police arrived.  Finally, there was evidence that Mr. Jackson
    instructed Ms. Oakes, the only other person in the room when Mr. Archibald died,
    to lie to the police and that he told a similar lie to the police himself.

[18]

The
    body of evidence summarized above constitutes some evidence upon which a
    preliminary inquiry judge could be satisfied that a reasonable jury, properly
    instructed, could conclude beyond a reasonable doubt that Mr. Jackson stabbed
    and killed Mr. Archibald.  For the reasons outlined above, the preliminary
    inquiry judge was not tasked with weighing whether there were other reasonable
    inferences inconsistent with a finding that Mr. Jackson stabbed Mr. Archibald.

[19]

Turning
    to the issue of intent, which is of course approached on the basis that there
    was evidence that Mr. Jackson stabbed Mr. Archibald, the Superior Court judge held
    that the post-offence conduct relied on by the preliminary inquiry judge as
    evidence of intent was irrelevant to Mr. Jacksons state of mind (para. 45).  She
    then went on to make her own assessment of whether the evidence which she
    viewed as properly admissible on that issue warranted the committal of Mr.
    Jackson (para. 49).

[20]

The
    Superior Court judge erred in both respects.  First, evidence of post-offence
    conduct may have relevance to the state of mind of the perpetrator.  The
    inferences that may be available from post-offence conduct depend upon the
    specific conduct and the rest of the evidence.  There is no
per se
rule declaring post-offence conduct irrelevant to the perpetrators state of
    mind: see
R. v. Rodgerson
, 2015
    SCC 38, [
2015] 2 S.C.R. 760, at paras. 20-21.  The preliminary
    inquiry judge saw the post-offence conduct as capable of supporting inferences
    relevant to Mr. Jacksons state of mind.  That determination, whether right or
    wrong, was within the jurisdiction of the preliminary inquiry judge.

[21]

Furthermore,
    even if the Superior Court judge was correct in regarding the post-offence
    conduct as incapable of supporting any inference as to Mr. Jacksons state of
    mind, she was wrong in holding that the preliminary inquiry judges reliance on
    that evidence allowed her to effectively step into the shoes of the preliminary
    inquiry judge and decide whether, on a proper view of the evidence, Mr. Jackson
    should have been committed for trial.  Regardless of any error the preliminary
    inquiry judge made within the exercise of her discretion, the question for the
    Superior Court judge remained the same  was there any evidence to support the
    preliminary inquiry judges determination that the test for committal for trial
    had been met.

[22]

In
    any event, even if one ignores entirely the post-offence conduct, there was
    evidence upon which the preliminary inquiry judge could conclude that a jury,
    acting reasonably, could find that when Mr. Jackson stabbed Mr. Archibald
    through the heart, he intended to cause him bodily harm, knowing that the
    bodily harm was likely to cause Mr. Archibalds death and was reckless as to
    whether death ensued: see
Criminal Code
s. 229(a).

[23]

The
    Superior Court judge accepted that a stab through the heart could reasonably
    support an inference that the stabber intended to cause the victim bodily
    harm.  She added, at para 49:

However, I fail to see any evidence whatsoever from which the
    jury could reasonably infer that Mr. Jacksons intent went beyond that.

[24]

I
    take the Superior Court judge to hold that no reasonable jury could infer that when
    Mr. Jackson stabbed Mr. Archibald in the heart intending to cause him bodily
    harm, he knew that the wound would probably kill Mr. Archibald.  With due respect,
    the inference of knowledge was properly available.  Juries have been told for
    centuries that they may infer that a person intends the natural consequences of
    his actions.  The preliminary inquiry judge was entitled to take the same
    approach.  In my view, the foreseeability of death as a natural consequence of Mr.
    Jacksons actions supported the inference that he had the intent and foresight
    required for murder under s. 229(a): see
R. v. Magno
(2006), 210
    C.C.C. (3d) 500, at paras. 18-19 (Ont. C.A.), leave to appeal refused, [2006]
    S.C.C.A. No. 407.

[25]

More
    to the point on a
certiorari
application, the nature of the wound
    inflicted provided some evidence upon which a preliminary inquiry judge could
    conclude that a reasonable jury could find that Mr. Jackson had the state of
    mind for murder.

[26]

In declining to commit for trial on second degree murder,
    the Superior Court judge envisioned other scenarios involving Mr. Jackson
    stabbing Mr. Archibald in the heart that would not warrant a conviction on
    second degree murder (para. 51).  The question before her, however, was not
    whether other scenarios could be envisioned, but whether there was any evidence
    capable of supporting the preliminary inquiry judges conclusion that there was
    evidence upon which a jury could make a finding that Mr. Jackson had the
    necessary intent: see
R. v. D.M.
, 2008 ONCA 69, 76 W.C.B. (2d) 338, at
    paras. 4-5.  In my view, the Superior Court judge went beyond the scope of
    review contemplated on a
certiorari
motion and applied a test much closer to the ultimate question of whether the
    Crown had proved its case beyond a reasonable doubt.  She erred in law in doing
    so.


IV



[27]

As
    indicated at the end of oral argument, the Crowns appeal is allowed, Mr.
    Jacksons appeal is dismissed, and the committal for trial on the charge of
    second degree murder is restored.

Released: October 7, 2016 (D.D.)

Doherty J.A.

I agree. S.E. Pepall J.A.

I agree. C.W. Hourigan J.A.


