R. v. Russell (D.) (2001), 150 O.A.C. 99 (SCC)
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Temp. Cite: [2001] O.A.C. TBEd. SE.021
Donald Russell (appellant) v. Her Majesty The Queen (respondent)
(27732; 2001 SCC 53)
Indexed As: R. v. Russell (D.)
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 the first degree murder of Y. under s. 231(5) of the Criminal Code (i.e., murder during the commission of another offence, namely, the forcible confinement of X. contrary to s. 279 of the Code). At the preliminary hearing, the only issue was whether the accused could be committed to trial for first degree murder rather than second (i.e., whether s. 231(5) required that the victim of the murder and the victim of the enumerated offence be the same person in order to sustain a first degree murder charge).
The Ontario Court of Justice (Provincial Division), i.e., the preliminary inquiry judge, ruled that under s. 231(5) the victim of the offence and the victim of the enumerated offence did not have to be the same person. The accused was therefore committed to stand trial for first degree murder where there was sufficient evidence to justify committal. The accused applied for certiorari to quash the committal.
The Ontario Superior Court in a decision reported (1999), 138 C.C.C.(3d) 533, quashed the committal for first degree murder and substituted a committal for second degree murder, holding that s. 231(5) required the victim of the murder and the victim of the enumerated offence to be the same person. The court opined that if s. 231(5) applied to two-victim scenarios, then the preliminary inquiry judge did not err in committing the accused to stand trial for first degree murder. The Crown appealed, arguing that, even if the preliminary inquiry judge had erred in finding that s. 231(5) could apply where the victim of the murder and the victim of the enumerated offence were not the same, the error constituted an error within jurisdiction and accordingly was not reviewable on certiorari.
The Ontario Court of Appeal, in a decision reported (1999), 128 O.A.C. 220, allowed the appeal. The court agreed with the Crown’s argument that the error alleged was not reviewable and restored the order of the preliminary inquiry judge committing the accused to stand trial for first degree murder. The accused appealed. Two issues were raised: (1) whether a preliminary inquiry judge’s committal of an accused to trial was reviewable on certiorari where it was alleged that the judge erred in setting out the elements of the offence; and (2) whether s. 231(5) of the Criminal Code required that the victim of the murder and the victim of the enumerated offence be the same person.
The Supreme Court of Canada dismissed the appeal. The court held that the kind of error alleged by the accused was reviewable on certiorari, but that the preliminary inquiry judge did not err in finding that s. 231(5) could apply even where the victim of the murder and the victim of the enumerated offence were not the same person. There was sufficient evidence to warrant the committal on first degree murder in this case.
Criminal Law – Topic 1271
Murder – Murder during commission of other offences – General principles – The accused was charged with the first degree murder of Y. under s. 231(5) of the Criminal Code (i.e., murder during the commission of another offence, namely, the forcible confinement of X) – At the preliminary hearing, the only issue was whether the accused could be committed to trial for first degree murder under s. 231(5) where the murder victim and the victim of the enumerated offence were not the same person – The preliminary inquiry judge ruled that s. 231(5) applied – The accused sought certiorari, alleging that the preliminary inquiry judge erred in the application of s. 231(5) – An issue arose as to whether this type of alleged error was reviewable on certiorari – The Supreme Court of Canada held that this was a jurisdictional error reviewable on certiorari, but that s. 231(5) may apply even where the victim of the murder and the victim of the enumerated offence are not the same – There was sufficient evidence to warrant committing the accused to trial for first degree murder – See paragraphs 1 to 50.
Criminal Law – Topic 1272
Murder – Murder during commission of other offences – Elements of offence – [See
Criminal Law – Topic 1271
].
Criminal Law – Topic 3500
Preliminary inquiry – General principles – Nature and purpose of preliminary inquiry – [See third
Criminal Law – Topic 7122
].
Criminal Law – Topic 3602
Preliminary inquiry – Adjudication and review – Evidence required for committal or discharge – [See
Criminal Law – Topic 1271
].
Criminal Law – Topic 3605
Preliminary inquiry – Adjudication and review – Judicial review of committal order – General – [See
Criminal Law – Topic 1271
].
Criminal Law – Topic 7122
Extraordinary remedies – Certiorari – When available – [See
Criminal Law – Topic 1271
].
Criminal Law – Topic 7122
Extraordinary remedies – Certiorari – When available – The Supreme Court of Canada stated that “… the scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari ‘runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term “jurisdiction” being given its narrow or technical sense’ … Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review ‘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’ …” – See paragraph 19.
Criminal Law – Topic 7122
Extraordinary remedies – Certiorari – When available – The Supreme Court of Canada stated that “with respect to preliminary inquiries held under s. 548 of the Criminal Code, the reasons for limiting the scope of supervisory remedies is clear. While the preliminary inquiry also affords defence counsel the opportunity to assess the nature and strength of the case against her client, its primary purpose is to ascertain whether there is sufficient evidence to warrant committing the accused to trial … Critically, the preliminary inquiry is not meant to determine the accused’s guilt or innocence. That determination is made at trial. The preliminary inquiry serves a screening purpose, and it is not meant to provide a forum for litigating the merits of the case against the accused. The limited scope of supervisory remedies reflects the limited purpose of the preliminary inquiry.” – See paragraph 20.
Cases Noticed:
R. v. Green (1987), 36 C.C.C.(3d) 137 (Alta. C.A.), refd to. [para. 11].
R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1; 38 C.C.C.(3d) 97; 60 C.R.(3d) 346; 64 C.C.C.(3d) 193, refd to. [para. 11].
R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126, refd to. [para. 12].
Québec (Procureur général) v. Girouard, [1988] 2 S.C.R. 254; 87 N.R. 343; 17 Q.A.C. 157, refd to. [para. 15].
R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34, appld. [para. 19].
R. v. Dubois, [1986] 1 S.C.R. 366; 66 N.R. 289; 41 Man.R.(2d) 1; 25 C.C.C.(3d) 221, refd to. [para. 20].
R. v. Hawkshaw, [1986] 1 S.C.R. 668; 66 N.R. 350, refd to. [para. 23].
R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 24].
R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161; 94 C.C.C.(3d) 481, refd to. [para. 32].
R. v. Hasselwander, [1993] 2 S.C.R. 398; 152 N.R. 247; 62 O.A.C. 285, refd to. [para. 32].
R. v. Arkell, [1990] 2 S.C.R. 695; 112 N.R. 175, refd to. [para. 40].
R. v. Kirkness, [1990] 3 S.C.R. 74; 116 N.R. 81; 69 Man.R.(2d) 81; 60 C.C.C.(3d) 97; 1 C.R.(4th) 91, refd to. [para. 46].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 231(1), sect. 231(5) [para. 16]; sect. 231(6) [para. 34]; sect. 231(6.1) [para. 35]; sect. 548 [para. 16].
Authors and Works Noticed:
Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 32].
Martin, Arthur G., Preliminary Hearings, in special Lectures of the Law Society of Upper Canada (1955), p. 1 [para. 20].
Counsel:
P. Andras Schreck and Mara B. Greene, for the appellant;
David Finley, for the respondent.
Solicitors of Record:
Pinkofsky Lockyer, Toronto, Ontario, for the appellant;
The Crown Law Office-Criminal, 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.
