R. v. Arcuri (G.) (2001), 150 O.A.C. 126 (SCC)
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Temp. Cite: [2001] O.A.C. TBEd. SE.020
Giacinto Arcuri (appellant) v. Her Majesty the Queen (respondent)
(27797; 2001 SCC 54)
Indexed As: R. v. Arcuri (G.)
Supreme Court of Canada
McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
September 14, 2001.
Summary:
The accused was charged with first degree murder. At the preliminary inquiry, the Crown’s case was entirely circumstantial. The accused called two witnesses whose testimony was arguably exculpatory. The accused argued that the preliminary inquiry judge was required to weigh the exculpatory evidence.
The Ontario Court of Justice (Provincial Division), i.e., the preliminary inquiry judge, in a decision reported [1998] O.J. No. 3974, rejected the accused’s contention that the judge must weigh the evidence. The judge held that if there was admissible evidence which could, if it were believed, result in a conviction, then there must be a committal notwithstanding the presence of exculpatory evidence. The accused was committed to stand trial for second degree murder. The accused applied to quash the committal, arguing again that the preliminary inquiry judge should have weighed the evidence.
The Ontario Court of Justice (General Division), in a decision reported [1999] O.T.C. Uned. 194, dismissed the application, holding that the preliminary inquiry judge applied the correct test for committal. The accused appealed.
The Ontario Court of Appeal, in an endorsement reported [2000] O.A.C. Uned. 9, dismissed the appeal. The accused appealed again, raising the issue of whether the preliminary inquiry judge, in determining whether the evidence was sufficient to commit the accused to trial, erred in refusing to weigh the Crown’s evidence against exculpatory evidence adduced by the defence.
The Supreme Court of Canada dismissed the appeal. The court reviewed the principles applicable to committals following a preliminary inquiry. The court discussed the validity of the common law rule in United States of America v. Shephard. The court stated that the traditional formulation of the common law rule should not be understood to foreclose consideration of defence evidence. Whatever the evidence of the Crown and defence, the judge must consider “the whole of the evidence”, in the sense that she must consider whether the evidence, if believed, could reasonably support a finding of guilt. The question is the same whether the evidence is direct or circumstantial. The only difference is that, where the evidence is direct, the evidence will by definition support a finding of guilt, the only remaining question being whether the evidence is to be believed, which is a question for the jury.
Criminal Law – Topic 3602
Preliminary inquiry – Adjudication and review – Evidence required for committal or discharge – The accused was charged with first degree murder – At the preliminary inquiry, the Crown’s case was entirely circumstantial – The accused called two witnesses whose testimony was arguably exculpatory – The accused argued that the preliminary inquiry judge was required to weigh the exculpatory evidence – The preliminary inquiry judge rejected the accused’s contention that the judge must weigh the evidence and committed the accused to stand trial for second degree murder – The Supreme Court of Canada refused to disturb the committal – The court discussed the validity of the common law rule in United States of America v. Shephard and reviewed the principles applicable where the Crown’s evidence was circumstantial and the defence presented exculpatory evidence – See paragraphs 1 to 37.
Criminal Law – Topic 3602
Preliminary inquiry – Adjudication and review – Evidence required for committal or discharge – The Supreme Court of Canada, per McLachlin, C.J.C., stated that “this appeal raises the question of whether a preliminary inquiry judge may ‘weigh the evidence’ in assessing whether it is sufficient to warrant committing an accused to trial. … I reaffirm the well-settled rule that a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict, and the corollary that the judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. As this Court has consistently held, this task does not require the preliminary judge to draw inferences from the facts or to assess credibility. Rather, the preliminary inquiry judge must, while giving full recognition to the right of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty.” – See paragraph 1.
Criminal Law – Topic 3602
Preliminary inquiry – Adjudication and review – Evidence required for committal or discharge – The Supreme Court of Canada stated that “the question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, ‘whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty’ … Under this test, a preliminary inquiry judge must commit the accused to trial ‘in any case in which there is admissible evidence which could, if it were believed, result in a conviction'” – See paragraph 21.
Criminal Law – Topic 3602
Preliminary inquiry – Adjudication and review – Evidence required for committal or discharge – The Supreme Court of Canada stated that “the test [for committal following a preliminary inquiry] is the same whether the evidence is direct or circumstantial … The nature of the judge’s task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true … It is for the jury to say whether and how far the evidence is to be believed … Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.” – See paragraph 23.
Criminal Law – Topic 3602
Preliminary inquiry – Adjudication and review – Evidence required for committal or discharge – The Supreme Court of Canada stated that “the [preliminary inquiry] judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence — that is, those elements as to which the Crown has not advanced direct evidence — may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established — that is, an inferential gap beyond the question of whether the evidence should be believed … The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.” – See paragraph 23.
Criminal Law – Topic 3602
Preliminary inquiry – Adjudication and review – Evidence required for committal or discharge – The Supreme Court of Canada, per McLachlin, C.J.C., stated that “the question that arises in the case at bar is whether the preliminary inquiry judge’s task differs where the defence tenders exculpatory evidence, as is its prerogative under s. 541. In my view, the task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true. However, where the Crown’s evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e.
including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.” – See paragraph 29.
Criminal Law – Topic 3602
Preliminary inquiry – Adjudication and review – Evidence required for committal or discharge – The Supreme Court of Canada stated that “… where the Crown’s evidence [at a preliminary hearing] consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e.
including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of ‘limited weighing’ never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.” – See paragraph 30.
Criminal Law – Topic 3602
Preliminary inquiry – Adjudication and review – Evidence required for committal or discharge – The Supreme Court of Canada discussed the validity of the common law rule in United States of America v. Shephard – The court stated that “… the traditional formulation of the common law rule should not be understood to foreclose consideration of defence evidence. It remains true that in certain cases (such as, for example, where the Crown adduces direct evidence as to every element of the offence) the case will necessarily go to the jury regardless of the exculpatory evidence proffered by the defence … This result is not inconsistent, however, with the preliminary inquiry judge’s mandate under s. 548(1). Whatever the evidence of the Crown and defence, the judge must consider “the whole of the evidence”, in the sense that she must consider whether the evidence, if believed, could reasonably support a finding of guilt. The question is the same whether the evidence is direct or circumstantial. The only difference is that, where the evidence is direct, the evidence will by definition support a finding of guilt, the only remaining question being whether the evidence is to be believed, which is a question for the jury.” – See paragraph 32.
Cases Noticed:
United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, appld. [para. 14].
R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126, appld. [para. 14].
R. v. Monteleone, [1987] 2 S.C.R. 154; 78 N.R. 377; 23 O.A.C. 241, refd to. [para. 21].
R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man.R.(2d) 161, refd to. [para. 22].
Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193, refd to. [para. 24].
Curley v. United States (1947), 160 F.3d 229, refd to. [para. 24].
R. v. Russell (D.) (2001) 274 N.R. 247; 150 O.A.C. 99 (S.C.C.), refd to. [para. 32].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 535, sect. 540(1)(a), sect. 541(1), sect. 548(1) [para. 18].
Authors and Works Noticed:
Bloos, Marvin, and Plaxton, Michael, An Almost-Eulogy for the Preliminary Inquiry: “We Hardly Knew Ye” (2000), 43 Crim. L.Q. 516, p. 526 [para. 25].
Gillies, Peter, Law of Evidence in Australia (2nd Ed. 1991), pp. 206 to 208 [para. 24].
McCormick, Charles Tilford, McCormick on Evidence (5th Ed. 1999), pp. 641 [paras. 22, 23]; 642 [para. 23].
Sopinka, John, Lederman, Sidney N., and Bryant, Alan M., The Law of Evidence in Canada (2nd Ed. 1999), s. 2.74 [para. 22].
Tanovich, David M., Upping the Ante in Directed Verdict Cases Where the Evidence is Circumstantial (1998), 15 C.R. (5th) 21, pp. 26, 27 [para. 28].
Tapper, Colin, Cross and Tapper on Evidence (8th Ed. 1995), pp. 190 to 192 [para. 24].
Taylor, James P., The Test for Committal on the Preliminary Inquiry: USA v. Shepard (1977), 11 U.B.C.L. Rev. 213, p. 230 [para. 31].
Watt, David, Watt’s Manual of Criminal Evidence (1998), ss. 8.0 [para. 22]; 9.01 [para. 23].
Counsel:
Joseph L. Bloomenfeld, for the appellant.
Feroza Bhabha, for the respondent.
Solicitors of Record:
Joseph L. Bloomenfeld, Toronto, Ontario, for the appellant.
The Ministry of the Attorney General, Toronto, Ontario, for the respondent.
This appeal was heard on April 19, 2001, before McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The following decision was delivered for the court, in both official languages, by McLachlin, C.J.C., on September 14, 2001.
