Certiorari and review of a Preliminary Inquiry decision

It is clear that a Magistrate on a Preliminary Inquiry is not entitled to weigh evidence. If there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit the accused to trial:  R. v. Sazant, [2004] 3 S.C.R. 635, 2004 SCC 77

 

That said, today’s brief Court of Appeal decision in R. v. Young, 2010 ONCA 156 suggests a deference to the Magistrate that is somewhat unexpected:

 

 

[1]              We are not satisfied that the justice made a jurisdictional error in discharging the respondent on the charge of first degree murder.  While there was evidence, primarily consisting of statements made by the respondent, from which it would appear that the inference of planning and deliberation could have been drawn, the justice considered the entirety of the evidence and engaged her assigned task to determine whether there was sufficient evidence to support the inference of planning and deliberation.  Her sufficiency determination is not subject to review on certiorari.

 

[2]              We do not accept the Crown’s contention that the justice preferred the “defence” inferences over the “Crown” inferences.  She decided, arguably incorrectly, that there was insufficient evidence to support an inference of planning and deliberation.  We accept that even if that determination is wrong, it does not constitute jurisdictional error.