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Criminal - Preliminary Inquiry (2). R. v. Goodridge
In R. v. Goodridge (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against "an unsuccessful application for judicial review (i.e., certiorari) to a Superior Court judge, seeking to quash the committal", here "to stand trial after a preliminary inquiry on a charge of aggravated assault":[1] The appellant, Gregory Goodridge, was committed to stand trial after a preliminary inquiry on a charge of aggravated assault. On the essential element of identity, the committal decision was based solely on the victim’s manifestly unreliable in-dock identification. Mr. Goodridge brought an unsuccessful application for judicial review (i.e., certiorari) to a Superior Court judge, seeking to quash the committal order. This is an appeal of the decision of the review judge.
[2] Mr. Goodridge, who represented himself in the proceedings below, but who was most ably assisted by counsel before us, argues that the preliminary inquiry judge committed jurisdictional error by applying the wrong legal standard because he failed to apply the decision of R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694. Hay is a jury instruction case where Rothstein J., for the majority, said in obiter that trial judges must direct verdicts of acquittal on motions for directed verdict “where the Crown’s case consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror”: at para. 41. Mr. Goodridge argues that this decision changed the law that applies to prima facie case determinations, including preliminary inquiries, and that based on its application in this case, he should have been discharged.
[3] The decision in Hay raises challenging issues, but I am not persuaded that it changed the law relating to directed verdicts of acquittal. If it did so, that change does not apply to preliminary inquiries. I would therefore dismiss the appeal.
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A. Was a Jurisdictional Error Raised Before the Review Judge?
[21] A preliminary inquiry judge’s task is set out in s. 548(1) of the Criminal Code, R.S.C. 1985, c. C-46:548 (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. [22] There is no right of appeal from the decision of a preliminary inquiry judge, only the opportunity to review the decision for jurisdictional error: see Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 955, per McIntyre J. As McLachlin C.J. wrote in R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 19, it follows that:[R]eview 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”: Skogman, supra, at p. 100.[1] [23] The Crown argues that if Hay changed the law to require preliminary inquiry judges to discharge accused persons where committal depends on manifestly unreliable identification evidence, the preliminary inquiry judge committed only legal and not jurisdictional error by failing to apply the correct law. It argues that “[i]n the context of the decision to commit for trial, jurisdictional error occurs only if there is no evidence in the record upon which the preliminary inquiry justice could order committal.” It submits that the in-dock identification is and was found by the preliminary inquiry judge to be “some evidence”, and therefore, no jurisdictional error occurred. It asks us to dismiss the appeal on this basis.
[24] For the purposes of this appeal, I take no issue with the Crown position that an error as to the sufficiency of evidence is not a jurisdictional error, unless there is no evidence on an essential element of the offence charged: see R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23; Russell, at paras. 21, 26.[2] This standard, which is commonly cited, emerged because it is the exclusive statutory role of the preliminary inquiry judge, and therefore within their jurisdiction, to assess the sufficiency of the evidence before them: Deschamplain, at para. 37; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 173. So long as there is evidence before them supporting committal, an error a preliminary inquiry judge makes in their assessment of whether the evidence is sufficient is made within their jurisdiction: Russell, at para. 26; R. v. Papadopoulous (2005), 2005 CanLII 8662 (ON CA), 201 C.C.C. (3d) 363 (Ont. C.A.), at para. 10, leave to appeal refused, R. v. E.H., [2005] S.C.C.A. No. 314.
[25] That said, preliminary inquiry judges are required to assess sufficiency using applicable legislated standards and will commit jurisdictional error if they fail to apply the statutory sufficiency test. This is because, as Major J. explained in Deschamplain, at paras. 12-13, “the jurisdiction of a preliminary inquiry judge is statutory and not inherent”, such that “’jurisdictional error is committed where ‘mandatory provisions’ of the Criminal Code are not followed’”: citing Dubois v. The Queen, 1986 CanLII 60 (SCC), [1986] 1 S.C.R. 366, at p. 377.
[26] The statutory provision that gives preliminary inquiry judges their jurisdiction is s. 548(1) of the Criminal Code: Forsythe v. The Queen, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268, at p. 272. As noted above, s. 548(1)(b) requires preliminary inquiry judges to consider the “whole of the evidence” before discharging the accused. In Deschamplain, the preliminary inquiry judge was found to have committed jurisdictional error by not doing so and therefore failed to carry out his statutory mandate: at para. 38.
[27] Naturally, judicial authorities provide additional directions on the statutory mandate in s. 548(1). The Supreme Court of Canada has directed that preliminary inquiry judges are to discharge their statutory mandate by applying the sufficiency test expressed in United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067: see e.g., R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 16. The Shephard test requires a judge to “commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction", but not otherwise: Shephard, at p. 1080. Relatedly, the Supreme Court has explained that preliminary inquiry judges are not to assess the quality, credibility or reliability of evidence: Arcuri, at para. 30; and see Deschamplain, at para. 15. Although these features of the legal standard are not spelled out in s. 548(1), they form part of the mandatory statutory obligation, and it is a jurisdictional error for a preliminary inquiry judge to fail to respect these constraints: Sazant, at para. 18, citing Dubois, at p. 380.
[28] It necessarily follows, in my view, that if the decision in Hay instructs preliminary inquiry judges that manifestly unreliable identification evidence is insufficient within the meaning of s. 548(1), it would be a jurisdictional error for the preliminary inquiry judge to refrain from assessing the reliability of manifestly unreliable identification evidence. The preliminary inquiry judge would have committed that jurisdictional error by concluding, as he did, that he did not have jurisdiction to consider the reliability of the manifestly unreliable identification evidence the Crown was relying upon.
[29] I would therefore find that this appeal raises an issue of jurisdictional error, and I would decline the Crown’s invitation to resolve it based on the limited scope of judicial review and without considering the implications of Hay.
B. Did the Review Judge Err by Failing to Find Jurisdictional Error?
[30] In my view, the review judge did not err by failing to find jurisdictional error. I am not persuaded, in the current state of authority, that Hay overturned Supreme Court of Canada authority that prohibits judges conducting prima facie case assessments from weighing the reliability of the evidence before them, even in the case of manifestly unreliable identification evidence. But even if Hay did so for directed verdict applications, I would find that the “Hay exception”, if it is an exception at all, does not apply to preliminary inquiries.
[31] My analysis proceeds in four parts. First, I set out the law that governs a preliminary inquiry judge’s decision to commit an accused for trial. Second, I consider the Supreme Court of Canada’s decision in Hay. Third, I explain why Hay does not change the law of directed verdicts and thus does not change the test governing committal after a preliminary inquiry. Fourth and finally, I explain why if Hay has in fact changed the law of directed verdicts, this change does not apply to preliminary inquiries.
1. The law of committal
[32] Committal “plays an important, although carefully circumscribed role in protecting the rights” of the accused person, by serving an “important, but … limited screening function”: M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973, at paras. 22, 36.[3] That screening function confirms that there is sufficient evidence available to the prosecuting authorities to warrant having the accused stand trial, but it does so subject to important limits. I will explain.
[33] As described, the Shephard test that applies to preliminary inquiries provides for the committal of “an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction": Shephard, at p. 1080. That base standard of committal also applies when a trial judge is deciding whether to order directed verdicts of acquittal at the end of the Crown’s case, and during the committal phase of extradition proceedings: Shephard, at p. 1080; Extradition Act, S.C. 1999, c. 18, s. 29(1)(a).[4] Subject to statutory modifications in the extradition context that permit extradition judges to weigh the plausibility of the case and grant Charter remedies,[5] the screening function is limited. This is so the committal judge does not perform the trial functions that the body that would do the trial after committal is charged with performing: R. v. Tenthorey, 2021 ONCA 324, 404 C.C.C. (3d) 457, at para. 67, citing Arcuri, at paras. 21-24.
[34] Those trial functions include assessing the quality or reliability of the evidence, deciding what evidence to believe, and determining which inferences to draw. McIntyre J. made this clear in R. v. Monteleone, 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154, in the directed verdict context, when he said: “It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury”: at p. 161.
[35] Notably, in Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802, a directed verdict of acquittal was overturned because it was erroneously granted in the face of admissible direct evidence of identification after the trial judge weighed the quality of the identification evidence and found it to be unreliable. This lack of reliability arose from the nature of the initial observation made by the witness and problems with the post-offence identification procedures, including a suggestive in-dock identification. McIntyre J., for the majority, explicitly rejected the suggestion that a judge can, on a directed verdict motion, withdraw identification evidence from the jury because he finds its quality to be wanting: Mezzo, at p. 844. He said this would “encroach upon the jury’s territory”: Mezzo, at p. 844.
[36] The same limitations apply to the screening function in preliminary inquiries. In Shephard, when identifying the standards that apply to committal for trial, the court directed that judges are to assess the sufficiency of evidence as “if it were believed”: at p. 1080. For the majority, Ritchie J. explicitly rejected the suggestion that a judge should refrain from committing if they conclude that the evidence is “manifestly unreliable”, explaining that proceeding this way would deprive “the members of the jury of their function to act as the sole judges of the truth or falsity of the evidence”: Shephard, at p. 1087.
[37] McLachlin C.J. also stressed, in the preliminary inquiry committal case of Arcuri, at para. 22, that “[i]t is for the jury to say whether and how far the evidence is to be believed”. She elaborated on this limit when clarifying how committal judges should approach direct evidence as opposed to circumstantial evidence. She described direct evidence as “witness testimony as to ‘the precise fact which is the subject of the issue on trial’”: Arcuri, at para. 22, citing Sopinka, at §2.74.[6] Such evidence is called “direct” because it directly asserts a material fact. She described circumstantial evidence as “‘any fact from the existence of which the trier of fact may infer the existence of a fact in issue’”: Arcuri, at para. 23, citing Charles Tilford McCormick, McCormick on Evidence, 5th ed. (St. Paul, Minnesota: West Publishing Co., 1999), at p. 641. As I am about to illustrate, she made clear that in deciding committal, a preliminary inquiry judge must treat both direct evidence and circumstantial evidence as true, without weighing its reliability or credibility.
[38] She noted that, by definition, direct evidence is “‘evidence which, if believed, resolves a matter in issue’”: Arcuri, at para. 22, citing McCormick, at p. 641. Therefore, direct evidence that an element of the offence exists is sufficient evidence to establish that element of the offence for the purposes of committal because the only remaining question relating to that material issue is “whether the evidence is to be believed, which is a question for the jury”: Arcuri, at para. 32. It follows that “[i]f there is direct evidence as to every element of the offence, the accused must be committed to trial”: Arcuri, at para. 22.
[39] But when the only evidence offered on an element of the charged offence is circumstantial, the judge must engage in a “limited weighing” of the evidence, “in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw” relating to the material issue: Arcuri, at para. 23. McLachlin C.J. explained, at para. 23 of Arcuri, that when engaged in this limited weighing, “[t]he 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” (emphasis in original). She also made clear that the judge does not assess the “inherent reliability” of the evidence: Arcuri, at para. 30. And she reaffirmed that a judge cannot discharge on the grounds that the Crown case is “weak”: Arcuri, at para. 33.
[40] Further, a preliminary inquiry judge cannot discharge an accused simply because the inferences to be drawn from the circumstantial evidence are not solely consistent with guilt. This is because the question in circumstantial cases is always whether “the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence” (emphasis added): R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 6. Accordingly, where the evidence supports both inferences that are consistent with guilt and those that are inconsistent with guilt, the accused must be committed for trial: Jackson, at para. 11, citing Russell, at para. 48. Put otherwise, where multiple inferences exist, the preliminary inquiry judge can only consider those favourable to the Crown: Sazant, at para. 18. The preliminary inquiry judge need not determine that guilt is the only reasonable inference to commit: Arcuri, at para. 25. Once again, that determination is for the body that will conduct the trial after committal.
[41] It can readily be seen that although the committal test articulated in Shephard, at p. 1080, asks whether there is “any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”, it is an imperfect tool for avoiding unreasonable verdicts. This is because it does not purport to protect against cases built on evidence that is obviously incredible, manifestly unreliable, or that does not satisfy the standards expressed in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, for a reasonable conviction based on circumstantial evidence: see M.M., at para. 68. As indicated, these constraints on the authority of the committal judge to interfere emerge from the limited role they play where another judicial body has the constitutional responsibility to make trial decisions. In giving an overview of the role of the preliminary inquiry judge at the beginning of her judgment in Arcuri, McLachlin C.J. gave a nod to these constraints when she said, “[T]he 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”: Arcuri, at para. 1 (emphasis added). At paras 42-81 the court considers whether the principle advanced by the defendant from Hay is good law, and whether a failure to apply it is legal, or alternatively - jurisdictional, error.
The court continues on a related theme:d. No jurisdictional error
[73] For these reasons, I am not persuaded that Hay has changed the law. It follows that I am not persuaded that the preliminary inquiry judge made a jurisdictional error by failing to consider it. The preliminary inquiry judge had only direct evidence of identity before him. He was bound to commit Mr. Goodridge because there was direct evidence on every element of the offence charged, notwithstanding the manifest unreliability of the in-dock identification. Hay was inapplicable – no weighing was permissible, let alone required. I would dismiss the appeal on this basis alone.
4. If Hay changed the law, it does not apply to preliminary inquiries
[74] If I am mistaken and Hay has overturned Mezzo and created an exception to the prohibition against weighing the reliability of identification evidence, I would find that this decision does not apply to preliminary inquiries. That is, it only applies to directed verdict motions.
[75] First, the fact that the test for committal is generally the same in preliminary inquiries as the test for a directed verdict is not a compelling reason to incorporate a “Hay exception” into s. 548(1) inquiries. I note that after the decision in Ferras, which now grants extradition judges the unique authority to discharge where evidence is so defective or so unreliable that it would be dangerous or unsafe to act upon,[9] the Supreme Court of Canada continues to describe Shephard as the committal test in extradition proceedings: see M.M., at para. 45. The lesson is that despite the commonality of the base test, the law can develop unique refinements to meet the needs of the forum in question: see Ferras, at paras. 19-26; 38-50. The fact that the Shephard test applies to both directed verdict motions and at preliminary inquiries is not a basis for reflexive duplication.
[76] Second, I note that the passage from Hay appears on its face to be confined to directed verdict applications. Indeed, this is the only kind of prima facie case assessment expressly mentioned in the passage. The only other context in which the Supreme Court of Canada has permitted prima facie case judges to consider whether evidence is “manifestly unreliable” is the extradition context: Ferras, at para. 54. In doing so, it made plain that this represents a clear break with the role of a preliminary inquiry judge: see M.M. at paras. 49-54, 57-60. If the passage in Hay changed the law, it should be read in light of the fact that where the Supreme Court has previously permitted prima facie case judges to conduct reliability assessments, it has taken great pains to confine these changes to the context in which they were developed. It is true that Hay, unlike Ferras, does not contain an extended discussion of why it is departing from the general rule in preliminary inquiries. However, it also makes no mention of preliminary inquiries and instead focuses solely on directed verdicts. It should therefore not be read as applying broadly to preliminary inquiries, given that the Supreme Court has adopted a narrow, case-specific approach to modifying the base test in prima facie case determinations.
[77] Third, there are good reasons why Hay should not be applied to preliminary inquiries. Directed verdict motions are brought after the entire case for the Crown has been presented. In contrast, preliminary inquiries are meant to be expeditious proceedings in which the task for the Crown is to present sufficient evidence, rather than all its evidence: Caccamo v. The Queen, 1975 CanLII 11 (SCC), [1976] 1 S.C.R. 786, at pp. 809‑10. A judge conducting a preliminary inquiry does not know what the case will look like at trial and is not in an optimal position, absent significant structural changes as to how preliminary inquiries are conducted, to terminate cases based on considerations of weight.
[78] Relatedly, adapting a rule that empowers the committal judge to weigh reliability would result in preliminary inquiries turning into mini-trials where identification is in issue, prolonging and complicating them. As the Supreme Court has repeatedly affirmed, “[T]he preliminary inquiry ‘is not a trial and should not be allowed to become a trial’”: Hynes, at para. 38, citing Patterson v. R., 1970 CanLII 180 (SCC), [1970] S.C.R. 409, at p. 412. It would also be inconsistent with the decided legislative trend of reducing the number and technicality of preliminary inquiries: see R. v. Archambault, 2024 SCC 35, 497 D.L.R. (4th) 185, at paras. 14-21, per Côté and Rowe JJ.
[79] Fourth, I do not accept appellant’s counsel’s submission that Hay should be extended to preliminary inquiries because doing so would bring this area of the law into line with the appellate power to set aside unreasonable verdicts. I accept that ending an unreasonable case early would save the accused the enduring prejudice of an ongoing criminal charge pending exoneration after appeal, but a preliminary inquiry is not a forum where the reasonableness of a conviction can be finally determined. The trial has not even been held yet. Granting this authority to preliminary inquiry judges would result in premature assessments of reasonableness. Indeed, in M.M., Cromwell J. cautioned against drawing an analogue between the role of a prima facie case judge and that of an appellate court determining whether a verdict after trial is unreasonable: at para. 69. An appellate court reviewing the reasonableness of a verdict is acting retrospectively, with the benefit of hindsight and a full trial record, while a prima facie case judge is confined to a prospective assessment of limited evidence: M.M., at para. 68.
[80] Finally, I note that granting preliminary inquiry judges the authority to discharge based on considerations of weight would encroach on the “constitutionally imperative” fact-finding role of juries for offences where an accused may elect to be tried by a Superior Court judge sitting with a jury: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 50; Canadian Charter of Rights and Freedoms, s. 11(f). This, in turn, would alter the constitutional role of provincial courts.
[81] For these reasons, if Hay created an exception to the law of committal for identification evidence, I would find that it does not apply to preliminary inquiries and is therefore immaterial to Mr. Goodridge’s committal. Therefore, it was not a jurisdictional error for the preliminary inquiry judge not to consider it, and I would dismiss the appeal on this basis as well.
C. Was the in-Dock Identification “No Evidence” Requiring a Discharge?
[82] This court said in Tebo, at para. 19, that where there are additional weaknesses, in-dock identifications may be entitled to “virtually no weight”. On that metric, the in-dock identification of Mr. Goodridge is entitled to virtually no weight. During oral submissions, appellant’s counsel submitted that there is not a long step between “virtually no weight” and “no evidence”. Although we were not asked directly to do so, the logical implication of treating weak in-dock identification as “no evidence” would be to require a discharge in a case such as this. I am therefore addressing that issue.
[83] In my view, the short distance between “virtually no weight” and “no evidence” does not, on the current state of the law, justify granting discharges at committal hearings when faced with problematic in-dock identifications. The only available path to recognizing that evidence has “virtually no weight” is to assess its weight, which is the very enterprise that the authority prohibits committal judges outside of extradition proceedings from engaging in. In my view, although I know it to have been done,[10] it is not appropriate for preliminary inquiry judges to deem problematic admissible evidence, such as problematic in-dock identifications, to be “no evidence”, and to discharge on this basis.
[84] I would not order Mr. Goodridge’s discharge on this basis. . R. v. Serkissoon
In R. v. Serkissoon (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal appeal, this brought against acquittals for "impaired driving counts on a directed verdict application" and for "dangerous driving counts after a judge-alone trial."
Here the court considers the appellate SOR of 'directed verdicts', and it's similarity with preliminary inquiries:c. Standard of Review
[47] The key question on a motion for a directed verdict is the same as the question on a preliminary inquiry: “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: Arcuri, at para. 21, quoting from United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080. “A directed verdict is not available if there is any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction”: R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 48.
[48] In making this assessment, the trial judge must consider “the entirety of the evidence” viewed “in the reasonable light that is most favourable to the Crown”: R. v. Kelly, 2017 ONCA 920, 138 O.R. (3d) 241, at para. 19.
[49] While discussing how to apply this test in the context of a preliminary inquiry (which uses the same test), Doherty J.A. explained that “evidence at the preliminary inquiry that is equally capable of supporting two reasonable inferences, one consistent with guilt and the other inconsistent with guilt, requires that the accused be committed for trial”: R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130, at para. 11. This must be distinguished from a situation where the evidence “cannot reasonably support the inferences necessary to establish the Crown’s case”: at para. 12.
[50] The standard of review on a directed verdict of acquittal is correctness. Whether or not this test is met is a question of law that does not command appellate deference to the trial judge: Barros, at para. 48; Ortega, at para. 5.
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