Test to be applied by a preliminary hearing judge and jurisdiction of a reviewing court on an application to quash the decision of a preliminary inquiry judge

R. v. Turner, 2012 ONCA 570 deals with the test to be applied by a preliminary hearing judge and jurisdiction of a reviewing court on an application to quash the decision of a preliminary inquiry judge:

[14] Before considering the individual grounds of appeal, I wish to review briefly the relevant case law.

[15] The seminal case on the test to be applied by a preliminary hearing judge is United States of America v. Sheppard, [1977] 2 S.C.R. 1067 at p. 1080:

I agree that the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required 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.

[16] McLachlin J. (as she then was) in R. v. Charemski, [1998] 1 S.C.R. 679, made it clear that the sufficiency of evidence cannot be assessed without reference to the ultimate burden on the Crown to prove the case beyond a reasonable doubt. Charemski concerned the sufficiency of the evidence for a directed verdict. McLachlin J. said at p. 701:

... "sufficient evidence" must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to "sufficient evidence" is incomplete since "sufficient" always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.

[17] In this case, where there is no direct evidence to establish possession, the preliminary hearing judge must engage in a limited weighing of the circumstantial evidence. This point was emphasized by McLachlin J. in Charemski at p. 699. Again, in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, McLachlin C.J. said at para. 23:

The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence - that is, those elements as to which the Crown has not advanced direct evidence - may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established - that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt's Manual of Criminal Evidence, supra, at § 9.01 (circumstantial evidence is "any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trial of fact may infer the existence of a fact in issue"); McCormick on Evidence, supra, at pp. 641-42 ("[c]ircumstantial evidence ... may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion"). The judge must therefore weigh the evidence in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The 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.]

[18] The jurisdiction of a reviewing court on an application to quash the decision of a preliminary inquiry judge is very limited. In R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, McLachlin C.J. said at para. 19:

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 of surveillance by a superior court of statutory tribunals, the term 'jurisdiction' being given its narrow or technical sense": Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 99. 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": Skogman, supra, at p. 100 (citing Forsythe v. The Queen, [1980] 2 S.C.R. 268).