



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dwyer, 2013 ONCA 368

DATE: 20130604

DOCKET: C56407

Doherty, Simmons and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Lee Dwyer

Appellant

P. Andras Schreck and Dean F. Embry for the appellant

Suhail Akhtar for the respondent

Heard and released orally: May 23, 2013

On
    appeal from the judgment of Justice Bryan J. Shaughnessy of the Superior Court
    of Justice, dated November 21, 2012, dismissing a certiorari application
    requesting that the committal order of Justice S. MacLean of the Ontario Court
    of Justice, dated May 10, 2012 in relation to the charge of second degree
    murder be set aside.

ENDORSEMENT

[1]

The appellant was committed to stand trial on the charge of second
    degree murder, robbery and aggravated assault by McLean J. The appellant had
    conceded committal on the robbery and aggravated assault charges but argued
    that he should be committed for manslaughter rather than second degree murder.

[2]

His application for an order of
certiorari
quashing the
    committal for second degree murder was dismissed by Shaughnessy J. The
    appellant appeals that ruling and argues there was no evidence led at the
    preliminary hearing upon which a reasonable jury properly instructed could find
    that the appellant had the required
mens

rea
in relation to a
    count of murder.

[3]

In the appellants submission the preliminary inquiry judge and the reviewing
    justice did not appreciate the distinction between a possibility and some level
    of probability. As a result, the preliminary inquiry judge drew inferences that
    were unreasonable and amounted to mere speculation. We disagree.

[4]

Reasonable inferences are not necessarily likely or probable inferences.
    The inference that is most favourable to the Crown must be drawn at the
    preliminary inquiry stage. Difficult inferences to draw may still nonetheless be
    reasonable.

[5]

In justifying committal under s. 21(1) and s. 21(2), the preliminary
    inquiry judge and the reviewing justice carried out a detailed review of the
    evidence and the law. In our view, it is unnecessary to carry out a third
    review, as we see no error in their conclusion that the inferences necessary to
    warrant committal were reasonably available given the nature and quality of the
    appellants acts, the acts of his accomplices and the planning and execution of
    the robbery.

[6]

The appeal is dismissed.

D. Doherty J.A.

J.M.
    Simmons J.A.

Paul
    Rouleau J.A.


