Monteleone was accused bit was he convicted wrongly? This just in from the Angel Ronan Lex Scripta (TM) News Service; There is a rumored and anticipated review of the United States v. Shephard (1977) jurisprudence. A discussion on United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080. See R. v. Arcuri, [2001] 2 SCR 828, 2001 SCC 54 at paragraph 14 to paragraph 16 seen here below: At Angel Ronan(TM), we contend that everyone who looks like Perry Mason should be a lawyer if they want to but with full qualification and this contention is not to the exclusion of people who do not look like Lemuel Shaw who is in the American Encyclopedia or Mifflin Wistar Gibbs who is in the Canadian Encyclopedia. See an Analysis of R. v. Monteleone here also. See Part 2 of the discussion here.
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 (per McLachlin J., dissenting). 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evidence “comes awfully close to saying that if the evidence presented by the Crown is so weak, the case ought to be withdrawn from the jury”: para. 85.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 or 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 see also R. v. Monteleone, [1987] 2 S.C.R. 154 below. This case involved an in-trial motion that sought a directed verdict of acquittal and this is within the leave of the Court to make such a verdict as requested within the midst of a jury trial. There is still a jury but the jury is working in tandem with the rightful, requisite and mandatory directions of the Judge who acknowledges the Jury as a trier of Fact but one that is submitted to his ultimate directions within that forum and if they do not render a result that complies with his direction, then a mistrial ensues resulting in an end to the process and potentially an acquittal.
This is an important observation and Monteleone should be reconsidered with this interplay between Judge and Jury kept in mind since the motion that was brought pursuant to the Court rules was for a directed verdict of Acquittal and the Judge could have decided that it was not appropriate based on the facts of the case and that no such direction would be levied by the Court.
By Angel Ronan Lex Scripta(TM).
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Antonio Monteleone Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. monteleone
File No.: 17170.
1986: October 31; 1987: September 17.
Present: Dickson C.J. and Estey, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Directed verdict ‑‑ Circumstantial evidence ‑‑ Arson ‑‑ Motion for a directed verdict of acquittal ‑‑ Test to be applied by the trial judge.
Evidence ‑‑ Arson -- No direct evidence of the unlawful setting of the fire ‑‑ Whether the incendiary origin of the fire may be proved by circumstantial evidence.
The building where appellant's store was situated was destroyed by fire. The fire began in appellant's portion of the building and after an investigation he was charged with arson. At trial, the fire inspector admitted that the actual cause of the fire could not be determined, but he reached the conclusion that the fire was of incendiary origin because his investigation revealed no accidental cause. At the close of the Crown's case based entirely on circumstantial evidence, the defence made a motion for a directed verdict of acquittal. The trial judge reviewed the evidence extensively and found that the evidence in total and its cumulative effect gave rise to suspicion only, and could not justify the drawing of an inference of guilt. He then concluded that there "was no evidence upon which a jury properly charged and acting reasonably could find the accused guilty", and therefore directed the jury to bring in a verdict of not guilty. On appeal, the verdict of acquittal was set aside and a new trial ordered. The Court of Appeal found that there was "sufficient prima facie evidence to justify a dismissal of the motion for a directed verdict of acquittal" and that the trial judge usurped the function of the jury in weighing the evidence and drawing inferences from it. This appeal is to determine whether the case should have been left to the jury.
Held: The appeal should be dismissed.
A trial judge is not justified to direct a verdict of acquittal where there is before the court any admissible evidence which, if believed by a properly charged jury acting reasonably, would justify a conviction ‑‑ the Shephard test. This test is applicable to a case resting on direct as well as circumstantial evidence. 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 also 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. In the present case, the appellant argued that there was no evidence as to the nature of the fire and therefore the commission of a crime. Although the expert evidence of the fire inspector did not afford evidence of an incendiary origin for the fire, the incendiary origin could be inferred from other inculpatory circumstances which could link the appellant to the fire. The evidence relating to appellant's motive, opportunity and the contradictions in his statement to the fire inspector met theShephard test and the case should have been left to the jury. It was not open to the judge in a jury trial to consider the weight of the evidence. This is the function of the jury and it should be left to them.
Cases cited
Applied: United States of America v. Shephard, [1977] 2 S.C.R. 1067; referred to: Mezzo v. The Queen, [1986] 1 S.C.R. 802; R. v. Comba, [1938] S.C.R. 396; R. v. Kavanagh (1972), 8 C.C.C. (2d) 296; R. v. Girvin(1911), 3 Alta. L.R. 387 (S.C. en banc) aff'd (1911), 45 S.C.R. 167; R. v. Paul, [1977] 1 S.C.R. 181; R. v. Burton (1854), Dears. 282, 169 E.R. 728; R. v. Syms (1979), 47 C.C.C. (2d) 114; Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136.
= Part 2=
= Part 2=
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Now read the following paragraphs for the clear purpose of an extradition judge's determinations vs. That of a trial 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 to weigh following a full investigation, disclosure to the accused and a proper weighing of the evidence at the highest standards in a properly constructed criminal 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 a full hearing of the evidence extrapolated in a sworn, prepared, closed information. It is not a fact finding mission. The R. vs. Comba is the test is 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.
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".
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 ...".
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