R. v. Sazant, [2004] 3 S.C.R. 635, 2004 SCC 77, 2004 SCC 77 (2004)

Extract

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R. v. Sazant, [2004] 3 S.C.R. 635, 2004 SCC 77, 2004 SCC 77 (2004)

R. v. Sazant, [2004] 3 S.C.R. 635, 2004 SCC 77

Her Majesty The Queen Appellant v.

Marvin Sazant Respondent

Indexed as: R. v. Sazant

Neutral citation: 2004 SCC 77.

File No.: 30079.

2004: June 16; 2004: November 19.

Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.

on appeal from the court of appeal for ontario

Criminal law - Preliminary inquiry - Jurisdiction - Certiorari - Preliminary inquiry judge discharging accused - Whether preliminary inquiry judge failed to consider "the whole of the evidence" as prescribed by Criminal Code - If so, whether such failure constitutes jurisdictional error - Scope of review on certiorari of decision of preliminary inquiry judge to discharge accused - Criminal Code, R.S.C. 1985, c. C-46, s. 548(1)(b).

The accused was charged with historical sexual offences, two of which were indecent assault and gross indecency against the complainant when the complainant was between the ages of 14 and 16. At the time, the age of consent was 14. At the preliminary inquiry, the complainant stated in reply to questions from Crown counsel that the activity was not something he wanted to be involved in, engaged in, or doing. On the count of indecent assault, the preliminary inquiry judge held that the Crown had to adduce some evidence that the complainant did not consent, and found that there was no evidence of non-consent. With respect to the count of gross indecency, he held that an absence of evidence of non-consent was a factor to consider and that a reasonable jury properly instructed could not find that the activity was grossly indecent. The accused was discharged on both counts. The Crown successfully applied for certiorari and the reviewing judge ordered the accused to stand trial on both counts. The Court of Appeal restored the discharge order, holding that the discharge was not subject to review on certiorari because the preliminary inquiry judge had erred within his jurisdiction.

Held (Bastarache and Fish JJ. dissenting): The appeal should be allowed. The discharge order should be s...

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