



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    the inquiry shall not be published in any document or broadcast or transmitted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(4)      [Repealed, 2005, c. 32, s.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. Wilson, 2016 ONCA 235

DATE: 20160331

DOCKET: C61452

Strathy C.J.O., Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Blake Wilson

Respondent

Dena Bonnet, for the appellant

Ariel Herscovitch, for the respondent

Heard:  March 16, 2016

On appeal from the order of Justice Nola Garton of the Superior
    Court of Justice, dated November 20, 2015, with reasons reported at 2015 ONSC
    7224, quashing the order of Justice J.M. Grossman of the Ontario Court of
    Justice, dated September 22, 2014, committing the appellant to stand trial for
    first degree murder.

Benotto J.A.:

[1]

Firefighters responding to a fire alarm found a 72-year-old woman dead in
    her apartment. She died of neck compression and there was semen in her mouth.
    The respondent was charged with first degree murder based on the allegation
    that he caused her death while committing or attempting to commit a sexual
    assault.

[2]

The preliminary inquiry judge committed the respondent to stand trial on
    first degree murder. On review, the Superior Court judge determined that there
    was no evidence upon which a properly instructed jury could conclude that the
    victim had not consented to the sexual contact. There was therefore no evidence
    of a sexual assault. The reviewing judge determined that the respondent should
    stand trial on second degree murder.

[3]

The Crown appeals the decision of the reviewing judge and seeks to have
    the first degree murder charge reinstated. Before this court, there was no
    issue as to identity. Nor was there an issue that the respondent had a sexual
    encounter with the victim. The sole issue on appeal is whether there was
    evidence that a sexual assault had taken place.

Facts

[4]

In the early afternoon of July 13, 2013, firefighters entered an
    apartment in response to a fire alarm. They found the deceased on the bed. Her
    head and shoulders were lying on the foot of the bed and the rest of her body
    was lying on the floor.

[5]

Dr. Pollanen, Ontarios chief forensic pathologist, testified about the deceaseds
    injuries. She had bruises on her body around her right and left shoulder
    blades, her left buttock, and the muscles in the back or nape of her neck. There
    was also had bleeding under the skin of her neck on the top of the voice box
    and a fracture on the left side of her larynx. Dr. Pollanen said that
    significant force was required to overcome the rigid strength of the cartilage
    in the neck and throat area. The force would have been close to the amount
    necessary to break a bone. The cause of death was neck compression. She died
    before the fires were set.

[6]

Dr. Pollanen opined that these injuries were caused while she was alive
    by something forcibly hitting her or by her body forcibly striking something. He
    concluded that the injuries reflected by these bruises occurred at around the
    same time as the injuries to her neck  that is, between a few minutes and a
    few hours before death.

[7]

Joanne Cox, a forensic biologist with the Centre of Forensic Sciences,
    testified that semen was swabbed from the deceaseds mouth. The DNA profile
    matched the respondent.

[8]

There were surveillance cameras in the apartment building where the
    deceased lived. Video showed a male exiting the elevator on the deceaseds
    floor and walking down the hallway at approximately 12:00 p.m. The same man was
    seen leaving the west stairwell of the apartment building at 1:08 p.m. In the
    1:08 p.m. video, the man is wearing a shirt and carrying another identified as
    belonging to the victims roommate.

[9]

The fire alarm sounded at 1:12 p.m. and firefighters arrived four
    minutes later. Investigators determined that three individual fires had been
    deliberately set in the deceaseds apartment.

[10]

At
    about 2:12 p.m. on the day of the murder, the individual seen on the
    surveillance video in the deceaseds building attempted to take money from an
    ATM at the subway entrance of the College Park complex with the access card
    issued to the deceased.

[11]

There
    was evidence of an advertisement in NOW magazine with the deceaseds registered
    phone number suggesting she was a sex-trade worker. The cell phone that was in
    the respondents possession when he was arrested made two calls to the deceased
    on the night before her murder. On July 13, 2013, his phone was used to make three
    calls to her at 11:47 a.m., 11:50 a.m., and 12:04 p.m. The deceased received and
    answered four other calls after 12:04 p.m. The last one was answered at 12:28
    p.m., when she stopped answering calls.

The Preliminary Inquiry

[12]

The
    preliminary inquiry judge committed the respondent to stand trial for first
    degree murder pursuant to s. 231(5)(b) of the
Criminal Code
, R.S.C.
    1985, c. C-46, which provides:

231(5) Irrespective of whether a murder is planned and
    deliberate on the part of any person, murder is first degree murder in respect
    of a person when the death is caused by that person while committing or
    attempting to commit an offence under one of the following sections:

(b) section 271 (sexual assault)

[13]

The
    preliminary inquiry judge considered the evidence and found that a reasonable
    inference could be drawn that a sexual assault had been committed.   He found
    that  although an inference could be drawn that the deceased consented to the
    sexual contact given that she was engaged in sex work  there was also support
    for the inference that she did not consent to the sexual contact. In his view,
    the evidence of Dr. Pollanen regarding the deceaseds injuries gave rise to the
    reasonable inference that consent was not present when semen was deposited in
    her mouth. He found that it could be reasonably inferred that she was killed in
    her apartment before the fire occurred.

[14]

He
    relied on the phone records that show that the deceased did not answer her
    phone after 12:28 p.m., the video footage of the male person leaving at around
    1:08 p.m., and the fire alarm generated at 1:12 p.m. He found that it was
    reasonable to infer that between 12:30 p.m. and 1:08 p.m. an act of oral sex
    occurred, a significant degree of force was applied to the victim causing
    injuries, neck compression was applied that caused the victims death, and three
    fires were set. He concluded that the nature of the injuries and neck
    compression causing death dramatically took events out of the arena of
    consensual behaviour and constituted evidence on which a reasonable jury,
    properly instructed, could return a verdict of guilt for first degree murder.

[15]

In
    summary, he concluded that even if consent could be inferred, the evidence also
    supported the inference that consent was not present.

Certiorari
Application

[16]

The
    respondent brought an application to quash his committal on first degree murder
    on the basis that there was no evidence on which a reasonable jury, properly
    instructed, could find that he committed a sexual assault on the deceased. He
    conceded that there was sufficient evidence to support his committal on second
    degree murder.

[17]

The
    reviewing judge allowed the application. She found that, other than the
    violence involved in the murder, there was no evidence of a sexual assault. She
    referred to evidence from which consent could be inferred: the accuseds
    attendance at the apartment was for sexual services in response to the
    advertisement in NOW magazine; the telephone contact between the accused and
    the deceased; the absence of any evidence of forced entry; the absence of
    evidence of a pre-existing relationship between the accused and the deceased to
    suggest any other reason for the phone calls than to set up an appointment for sexual
    services; and the presence of semen from at least one other male in the
    deceaseds vaginal cavity.

[18]

In
    the reviewing judges view, the preliminary inquiry judge conflated the fact
    that the deceaseds death was caused by a violent non-consensual act with the
    question of whether the sexual activity was non-consensual. Simply put, she
    found there was no evidence to bridge or link the act of violence to the sexual
    act.

Issue on Appeal

[19]

There
    is only one issue to be determined: was there evidence of a sexual assault upon
    which, if believed, a jury could find that the killing occurred while the
    respondent was committing a sexual assault? If so, then the preliminary inquiry
    judge did not exceed his jurisdiction. If not, then the reviewing judge was
    correct to conclude that he did. This analysis requires a consideration of the
    respective roles of the preliminary inquiry judge and the reviewing judge.

The Role of the Preliminary Inquiry Judge

[20]

Subsection
    548(1) of the
Criminal Code
reads as follows:

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.

[21]

The
    test for committal is well settled: is there any evidence on which a reasonable
    jury properly instructed could return a guilty verdict? A preliminary inquiry judge
    must commit the accused to stand trial in any case in which there is admissible
    evidence which could, if it were believed, result in a conviction:
United
    States of America v. Shephard
, [1977] 2 S.C.R. 1067, at p. 1080.

[22]

The
    test is the same whether the evidence is direct or circumstantial. However, with
    circumstantial evidence, there is an inferential gap between the evidence and
    the matter to be established. The question becomes whether the elements of the
    offence to which the Crown has not advanced direct evidence may reasonably be
    inferred from the circumstantial evidence.

[23]

The
    preliminary inquiry judge must therefore engage in a limited weighing of the
    evidence to assess whether it is reasonably capable of supporting the
    inferences that the Crown asks the jury to draw. This does not entail considering
    whether he or she would conclude that the accused is guilty. Nor does the judge
    draw factual inferences or assess credibility. Rather, the preliminary inquiry judge
    asks whether the evidence, if believed, could reasonably support an inference
    of guilt:
R. v. Arcuri
, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 1
    and 23.

[24]

Any
    reasonable interpretation or permissible inference from the evidence, beyond
    conjecture or speculation, is to be resolved in the prosecutions favour. At
    the preliminary inquiry stage, if more than one inference can be drawn from the
    evidence, only the inferences that favour the Crown are to be considered:
R
.
v. Sazant
, 2004 SCC 77, [2004]
    3 S.C.R. 635, at para. 18. To weigh competing inferences is to usurp the
    function of the trier of fact:
R. v. Clarke
(2002)
, 159 O.A.C. 221, at para. 4.

The Role of the Reviewing Judge

[25]

The
    scope of
certiorari
review is very limited
: R. v. Russell
,
    2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19. In
R. v. Manasseri,
2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28, Doherty J.A. explained:

[T]he reviewing court does not
    simply redo the limited weighing function assigned to the preliminary inquiry
    judge. The reviewing court can interfere only if jurisdictional error is
    established. The jurisdictional error inquiry looks not at the correctness of
    the ultimate decision, but at whether the preliminary inquiry judge exceeded or
    declined to exercise his or her jurisdiction in the course of arriving at that
    decision. [Citations omitted.]

[26]

As
    summarized in
R. v. Martin,
2001 CanLII 4971 (Ont. C.A.), at para. 3:

It is well settled that where there is a scintilla of evidence
    upon which the preliminary inquiry judge could conclude that the test is
    satisfied, a reviewing court should not intervene to quash the committal. See
    also
R. v. Russell
, where the Supreme Court of Canada reaffirmed the
    limited scope of review on certiorari to review committals for trial and
    reiterated that a preliminary inquiry judge's determination of the sufficiency
    of evidence is entitled to the greatest deference. It is only if there is no
    evidence on an element of the offence that a reviewing court can vacate the
    committal.         [Citations omitted.]

[27]

A
    preliminary inquiry judge commits a jurisdictional error by committing an
    accused when an essential element of the offence is unsupported by the
    evidence.  However, that does not entail the reviewing judge asking whether she
    would have arrived at a different result. As the majority in
R. v.
    Deschamplain
, 2004 SCC 76, [2004] 3 S.C.R. 601, explained at para. 23: [I]t
    would be improper for a reviewing court to intervene merely because the
    preliminary inquiry judges conclusion on sufficiency differs from that which
    the reviewing court would have reached.

[28]

A
    preliminary inquiry judges determination is therefore entitled to the greatest
    deference. The reviewing judge must only decide whether there was an
    evidentiary basis on which the court below could form the opinion that the
    evidence was sufficient to justify a committal for trial.

Analysis

[29]

I
    have concluded that the preliminary inquiry judge did not exceed his
    jurisdiction. There was evidence upon which a reasonable jury, properly
    instructed, could reasonably infer that the sexual encounter was not
    consensual.   Therefore, the reviewing judge exceeded the limited scope of permissible
    review by interfering with the committal on first degree murder.

[30]

The
    whole of the evidence before the preliminary inquiry judge grounded the
    inferences he drew. David Watt in
Watts Manual of Criminal Evidence
(Toronto:
    Carswell, 2014), at § 9.01, defines inferences:

An
inference
is a deduction of fact that may logically and reasonably
    be drawn from another fact or group of facts found or otherwise established in
    the proceedings.  There can be
no
inference without objective facts
    from which to infer the facts that a party seeks to establish. If there are
no
positive proven facts from which an inference may be drawn, there can be no
    inference, only impermissible speculation and conjecture.  [Emphasis in
    original.]

[31]

In
    my view, there were facts in the evidence before the preliminary inquiry judge
    from which a lack of consent to the sexual act could be logically and reasonably
    drawn. The nature and location of the injuries, the position of the deceased on
    the bed, and the amount of time the attacker was in the apartment  all taken
    together with the remaining evidence  form a group of facts from which a
    reasonable inference of lack of consent could be drawn. I turn to the
    significance of these facts.

[32]

The
    victims injuries were concentrated on her throat, the nape of her neck, upper back,
    and buttock. Significant force was required to inflict these injuries. She was
    found with her head and shoulders on the bed and her feet and the rest of her
    body off the bed. The jury could infer that this reflects her last position
    when alive, and is consistent with a position in which the sexual act would
    take place. The location of these injuries on the upper part of her body and
    the position of her body allow for the reasonable inference that the oral sex
    was  at least at some point  forced.

[33]

There
    is also the time frame. At its longest, the attacker was in the apartment from
    12:00 p.m. to 1:08 p.m.  slightly over an hour. The deceased stopped answering
    her phone at 12:28 p.m. Because of the phone calls that the deceased was
    receiving and answering until 12:28 p.m., the preliminary inquiry judge
    inferred that the sexual activity and the deceaseds death occurred sometime in
    the 40 minutes between that time and when the attacker left at 1:08 p.m.  This
    is an inference open to the jury.

[34]

Putting
    the case at its highest for the Crown, this brief time frame supports the
    inference that the sex was not consensual. During this short time, many things
    occurred: sexual contact between the accused and the deceased; the infliction
    of a violent beating; neck compression causing death; the gathering of combustible
    items to set three separate fires; the theft of the victims bank card; and the
    attacker found and took the deceaseds roommates shirts. The short timeline
    allows for the inference that the violence overlapped with the sexual act,
    particularly in light of the deceaseds injuries.

[35]

Taken
    together, these facts support the reasonable inference that the sexual contact
    was not consensual. They elevate the Crowns allegation that the sexual act was
    non-consensual beyond speculation, and, if believed, could support an inference
    of guilt beyond a reasonable doubt. That other inferences may be available is
    of no moment since, at the preliminary inquiry stage, inferences are resolved
    in favour of the Crown.

[36]

The
    reviewing judge substituted her own findings without resolving the inferences
    in favour of the Crown or taking its case at its highest. She referred
to
R. v. MacDonald
,
[2004] O.J. No 1756 (C.A.), to reject
    the proposition that a connection between sexual activity and a violent killing
    gives rise to a charge of first degree murder under s. 235(1)(b). However, in
    that case, there was no evidence of the anal intercourse that was the
actus
    reus
of the alleged sexual assault. The other sexual act that occurred in
MacDonald
was not alleged to have been non-consensual. Here, there is clear evidence of
    the sexual act in the form of the semen in the mouth of the deceased. Though the
    inference was available that the oral sex was consensual, there is evidence to
    support the competing inference that it was not. This distinguishes the case
    from
MacDonald
.

[37]

The
    evidence taken as a whole can reasonably support the inference that the deceased
    did not consent to the sexual act.

Disposition

[38]

I
    would allow the appeal and reinstate the preliminary inquiry judges committal
    for trial on first degree murder.

Released: March 31, 2016

M.L. Benotto
    J.A.

I agree G.R.
    Strathy C.J.O.

I agree P. Lauwers
    J.A.


