Prelim Evidence Not to be “Shorn of Context”

Along with his co-accused, Jeremy Hall was committed to stand trial on a charge of second-degree murder. At the preliminary inquiry, the Crown properly established that there was circumstantial evidence upon which a trier of fact could find that it Hall's actions satisfied the elements of second-degree murder and he was committed to stand trial.

Hall sought to have his committal quashed. The Superior Court of Justice refused to do so. Hall then appealed: 2015 ONCA 198.

On appeal, he advanced two arguments. Each alleged that the preliminary inquiry judge misapprehended the evidence adduced, and drew impermissible inferences about the actus reus and mens rea of second-degree murder.

As the case for the Crown included circumstantial evidence, the Court of Appeal recalled that the preliminary inquiry judge was entitled – indeed, obliged – to engage in a limited weighing of all the evidence adduced, in order to determine if on the whole of the evidence, it would be reasonable for a properly instructed jury to infer guilt This limited weighing involves an assessment of the reasonableness of the inferences to be drawn. [See para 5, emphasis added. See also R v Arcuri, [2001] 2 SCR 828].

The Court of Appeal emphasized the importance of considering the whole of the evidence in this weighing exercise, stating:

The argument advanced at the preliminary inquiry and on the motion to quash, and repeated here, is commonplace in cases in which the prosecutor seeks to establish the liability of an accused on the basis of circumstantial evidence. What is essentially a single ongoing event is subjected to a metaphysical, frame-by-frame dissection. Each item of evidence is examined in isolation, shorn of its context, then cast aside if a competing inference can be conjured. But such an exercise is to no avail. At each level, first instance, judicial review and on appeal, it is the whole of the evidence that is to be considered. Each item in relation to the others, and to the evidence as a whole. It is all of them together that may constitute a proper basis for committal or conviction as the case may be [emphasis added]. [para 6]

For these reasons, Hall’s appeal was dismissed. Whether a properly instructed jury would ultimately convict him, in the opinion of the Court of Appeal, is beside the point.