Comba is the appropriate jurisprudence; it is argued. From the Angel Ronan Lex Scripta Law Library; A discussion on United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080. Simply put, USA vs. Shephard is really the standard used by an extradition Judge as to whether there is evidence for a society seeking justice and extradition of an accused to weigh the evidence following a full investigation, disclosure to the accused and a proper determination and hearing of the evidence at the highest standards in a properly constructed Criminal Law Court using the appropriate tests for weighing such evidence. As such, Shephard follows Hernandez purposefully. The Preliminary Hearing Judge is an elevated pre-trial Judge with an opportunity for a full hearing of the evidence as applied to the Crown Onus and the standard of proof with what detail on the Crown brief is contained therein as from the events as alleged in a sworn, prepared, information that represents the closed summation of the police service's due diligence. It is not a fact finding mission. The R. vs. Comba is the test in the appropriate analysis for a preliminary inquiry or pre-trial Judge. Shephard and Hernandez are not to be used in their pre trial or preliminary inquiry court forum.

See   R. v. Arcuri, [2001] 2 SCR 828, 2001 SCC 54 at paragraph 14  to paragraph 16 seen here below:

14                              Lampkin Prov. J. began by citing this Court’s decision in United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080, which held that a preliminary inquiry justice is “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”.  He then stated that the application of the Shephard test to the facts of particular cases “has brought sharp disagreement even at the highest level”: para. 75.  In support of this proposition, he cited this Court’s decision in R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, in which both the majority and the dissent affirmed Shephard but the latter went on to state that “whether the evidence is direct or circumstantial, the judge, in assessing the sufficiency of the evidence must, by definition, weigh it”: Charemski, supra, at para. 23 (perMcLachlin J., dissenting on Leithland's girlfriend who says we only need one in the law firm but Warren, the founder, does not mind two but not Leithland since he is trying to be the only one).  Lampkin Prov. J. reasoned that this statement reflected a disagreement with the majority position and the traditional common law rule.  In his view, the proposition that a preliminary judge must weigh the evidence “comes awfully close to saying that if the evidence presented by the Crown is so weak, the case ought to be withdrawn from the jury”: para. 85.  He therefore rejected the accused’s contention that the judge must weigh the evidence, holding at para. 96 that

if “there is admissible evidence which could, if it were believed, result in a conviction”, . . . there must be a committal notwithstanding the presence of exculpatory evidence.  Failure to commit would mean that the justice made findings of fact and drew inferences therefrom which are forbidden at the preliminary hearing stage.  [Emphasis added.]

15                              Despite that ruling, Lampkin Prov. J. carefully surveyed not only the evidence that the Crown had led, but also the evidence and arguments adduced by the accused.  While he ultimately determined that the accused should be committed to trial for second degree murder, he did so only after “view[ing] the evidence as a whole” (para. 90).  Lampkin Prov. J. rejected the Crown’s contention that the accused could be committed to trial for first degree murder under s. 231(2) of the Criminal Code, R.S.C. 1985, c. C-46, finding that the evidence of planning and deliberation was insufficient.

2.   Ontario Court (General Division)

16                              On certiorari to the Ontario Court  (General Division), the accused pursued the argument that the preliminary inquiry judge should have weighed the evidence.  Tobias J. dismissed the application.  In his view, “the reasons for decision of the preliminary hearing judge constituted a careful review of the evidence and a thorough determination of the sufficiency of the evidence”: [1999] O.J. 758 (QL), at para. 7.  He rejected the accused’s argument that Lampkin Prov. J. had misapplied Charemski, supra.  “Considering his reasons as a whole”, he wrote, “there is simply no indication that the judge applied an incorrect test to the facts adduced at the preliminary hearing.  He followed the test for committal set out by the majority of the Court and by [the dissent] in Charemski”: para. 10.

After reading these paragraphs, we come to realize there is a tension floating through our Criminal Law system and some have asked, ''What preparation  and vetting is required of any case   that is set for a jury trial?'' There is some point to a preliminary inquiry  and maybe the point was to help the parties see whether the Crown could meet its onus on the evidence in the entire file; not whether a legally  unschooled jury that is not initiated to the finer points of the common law and finer points of the criminal law jurisprudence  as to the Golden thread could possibly believe the oath vs. oath evidence presented  in the file or any other evidence that may be circumstantial or otherwise. The issue is that the trier of fact is entitled to choose what they will believe but maybe the point of the preliminary inquiry in our common law has been misunderstood or lost since 1977 although these are not the droids you are looking for; yes maybe   lost and the real question  for the preliminary inquiry is whether there is evidence that satisfies the golden thread and the Crown onus of proof beyond a reasonable doubt; the onus right down to the actus reus or mens rea with  sufficient evidence  to substantiate either  and not the probability of potential belief by an unknown set of individuals with an unknown quotient of comprehension or involvement with such discussions in a publicly funded and formal forum dedicated to the Honor or the Queen and monarch.  

   ---------
Now read the following paragraphs  below for the clear purpose of an extradition judge's determinations vs. that of a Trial Judge along with  a Preliminary Inquiry Judge  and the various standards used in either case.  Simply put, USA vs. Shephard is really the standard used by an extradition Judge as to whether there is evidence for a society seeking justice and extradition of an accused  to weigh the evidence  following a full investigation, disclosure to the accused and a proper weighing and hearing of the evidence at the highest standards in a properly constructed Criminal Law Court using the appropriate tests for weighing such evidence.  As such,  Shephard follows Hernandez  purposefully.   The Preliminary Hearing Judge is an elevated pre-trial Judge with an opportunity  for a  full hearing of the evidence as applied to the Crown Onus and the standard of proof with what detail on the Crown brief is  contained therein as from the events as alleged    in a sworn, prepared,  information that represents the closed summation of the police service's due diligence.   It is not a fact finding mission.   The R. vs. Comba is the test in the appropriate analysis for a preliminary inquiry or  pre-trial Judge.  Shephard and Hernandez are not to be used in their pre trial or preliminary inquiry court forum.

See below for a delineating discussion on this issue as seen in   United States of America v. Shephard, 1976 CanLII 8 (SCC),

A finding that evidence is "manifestly unreliable" or "dubious" does, of course, necessarily involve some sort of weighing process, not, however, for the purpose of determining whether such evidence "proves" the charge but rather for the purpose of determining whether it has any weight at all which could prove the charge. As stated by Thurlow J. in the case of HERNANDEZ (above cited), the extradition judge must weigh the evidence "in a rough scale, to determine its usefulness at a trial and what conclusions the whole or parts of it would support".

The paragraph above indicates what  is the proper approach in Hernandez for extradition determinations as followed in Shephard.  Shephard and Hernandez, however, are not about preliminary inquiries or directed verdicts or the final weighing of evidence at the appropriate standards in either a Preliminary Inquiry court or in a Trial court.  



The Court went on to say; 

With respect, I am in complete agreement with the statement of Thurlow J. and I am ready to approve Hugessen A.C.J. having followed that principle. I am of the opinion that the trial judge, upon considering whether he should direct a ver­dict at the close of the Crown's case, has a discre­tion to direct a verdict not confined only to those cases where the evidence was wholly circumstan­tial. Rather, his discretion is, in the words of Chief Justice Duff, "whether the evidence is of such a dubious nature as to be dangerous". In Puerto Rico v. Hernandez, supra, the evidence was dubi­ous and dangerous to use as a basis for conviction because the witness purported to make observa­tions which the learned trial judge believed were impossible. In the present case, the evidence is dangerous and dubious because it was given by a witness who was quite evidently acting in hope of a reward which had been promised to him in detail. I use Thurlow J.'s words in Hernandez, "I find it inconceivable that a person should be put on trial on such flimsy evidence ...".

To conclude, we see the clear purpose of an extradition judge's determinations vs. that of a Trial Judge along with  a Preliminary Inquiry Judge  and the various standards used in either case:  

The trial judge, therefore,  upon considering whether he should direct a ver­dict at the close of the Crown's case, has a discre­tion to direct a verdict not confined only to those cases where the evidence was wholly circumstan­tial. Rather, his discretion is, in the words of Chief Justice Duff, "whether the evidence is of such a dubious nature as to be dangerous". 

Simply put, USA vs. Shephard is really the standard used by an extradition Judge as to whether there is evidence for a society seeking justice and extradition of an accused  to weigh the evidence  following a full investigation, disclosure to the accused and a proper determination  and hearing of the evidence at the highest standards in a properly constructed Criminal Law Court using the appropriate tests for weighing such evidence.  As such,  Shephard follows Hernandez  purposefully.   The Preliminary Hearing Judge is an elevated pre-trial Judge with an opportunity  for a  full hearing of the evidence as applied to the Crown Onus and the standard of proof with what detail on the Crown brief is  contained therein as from the events as alleged    in a sworn, prepared,  information that represents the closed summation of the police service's due diligence.   It is not a fact finding mission.   The R. vs. Comba is the test in the appropriate analysis for a preliminary inquiry or  pre-trial Judge.  Shephard and Hernandez are not to be used in the pre-trial or preliminary inquiry court forum.

Written by Warren A. Lyon, Firm Litigator.