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.


New & Notable: Looking for just one reasonable inference...

Clinton Yowfoo had two acquaintances, Mac and Ngo. The three men were actively involved in drug trafficking. The three men had come to the attention of the police and they were under surveillance by the police. During that surveillance Yowfoo was observed “on numerous occasions” in the company of Ngo and Mac.


On August 6, 2009 Ngo and Mac were arrested. Their residence was searched and the police found large quantities of drugs and cash. Two days later the police attended another address – which was believed to be a stash house. When the police arrived Yowfoo’s car was in the driveway. It was not his residence. About 53 minutes later he emerged carrying two bags (which later were found to contain items consistent with drug trafficking). The police arrested him.

The police then searched the residence and found a locked closet – inside they discovered drugs and firearms – which could have been worth up to $1.7 million. Yowfoo was charged in relation to those items. The evidence at trial included his presence in the house, he had a key for the residence, he had packaging for the brand of lock on the closet, although there was no evidence he had a key for the lock.

Yowfoo was convicted. He appealed: 2013 ONCA 751.

On appeal Yowfoo argued that there was no evidence that he had a key for the lock on the closet and that he left without retrieving the items in the closet. From this, combined with the evidence above, Yowfoo argued that there is a reasonable inference that he attended that residence to clean out the drug trafficking items he was arrested with after having heard that Mac and Ngo were arrested and either had no knowledge or no control over the closet.

The Court of Appeal accepted this as a reasonable inference and overturned the conviction, notwithstanding that Yowfoo did not testify.