



WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under ss.
    539(1), (2), (3) or (4) of the
Criminal Code
shall continue.  These
    sections of the
Criminal Code
provide:

539          (1)
Prior to the
    commencement of the taking of evidence at a preliminary inquiry, the justice
    holding the inquiry

(a)       may, if application therefor is made by the
    prosecutor, and

(b)       shall, if application therefor is
    made by any of the accused, make an order directing that the evidence taken at
    the inquiry shall not be published in any document or broadcast or transmitted
    in any way before such time as, in respect of each of the accused,

(c)       he or she is discharged; or

(d)       if he or she is ordered to stand
    trial, the trial is ended.

(2)
Where an accused is not
    represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)
Everyone who fails to
    comply with an order made pursuant to subsection (1) is guilty of an offence
    punishable on summary conviction

(4)
[Repealed, 2005, c. 32, s.
    18(2).]

R.S., 1985, c. C-46, s. 539; R.S.,
    1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.






CITATION:
R. v. Gray, 2012 ONCA 7



DATE: 20120105



DOCKET: C54575



COURT OF APPEAL FOR ONTARIO



Sharpe, Blair and Rouleau JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Brandon Gray



Appellant



Victoria Rivers, for the appellant



Shawn Porter, for the respondent



Heard & released orally:
December 22,
          2011



On appeal from the order of Justice Michael J. Quigley of the
          Superior Court of Justice dated October 21, 2011.



ENDORSEMENT



[1]

The appellant argues that the application judge erred by granting
certiorari
to quash a committal for trial for manslaughter and committing him for second
    degree murder.

[2]

There are two issues:

1.   Did the
    application judge err by concluding that the preliminary inquiry judge fell
    into jurisdictional error when he failed to commit the appellant for trial on
    the charge of second degree murder?

2.   Did the
    application judge err by committing the appellant for trial on second degree
    murder rather than remitting the matter to the preliminary inquiry judge?

1. Jurisdictional error

[3]

After reviewing the evidence and the preliminary inquiry judges
    reasons, the application judge concluded as follows at para. 30:

I find that Justice Hunter did commit
    jurisdictional error by favouring inferences to the benefit of the respondent
    without regard to inferences which might well be favourable to the Crowns
    position.  I further find that Justice Hunter did not look at the totality of
    the evidence notwithstanding the fact that his reasons indicated that he had
    done so.

[4]

In our view, the application judge applied the correct test.  It is well
    established that a preliminary inquiry judge falls into jurisdictional error
    where he or she prefers an inference favourable to the accused over an
    inference favourable to the Crown or by failing to consider the whole of the
    evidence: see e.g.
R. v. Sazant
(2004), 208 C.C.C. (3d) 224 (S.C.C.).

[5]

It is also our view that it was clearly open to the application judge to
    conclude that the preliminary inquiry judge had committed both types of error. 
    On our reading of the preliminary inquiry judges reasons, the exercise he
    engaged in was much more akin to weighing the evidence and trying the case than
    to assessing the sufficiency of the evidence for trial.  That, in our view,
    amounts to jurisdictional error.

[6]

[This paragraph has been edited for publication pending the conclusion of the trial, pursuant to the non publication order of  the court.]

[7]

[This paragraph has been edited for publication pending the conclusion of the trial, pursuant to the non publication order of  the court.]

[8]

[This paragraph has been edited for publication pending the conclusion of the trial, pursuant to the non publication order of  the court.]

2. Committing for trial on second degree
    murder

[9]

The respondent concedes that the application judge erred by committing
    the appellant for trial on second degree murder: see
R. v. Thomson
(2005), 74 O.R. (3d) 721 (C.A.).

[10]

While the Crown does not appear to have asked the application judge in
    either or written submissions to issue an order of
mandamus
, it is clear
    from the notice of application and from the reasons of the application judge
    that there was an application for
mandamus
in aid of
certiorari.

[11]

In our view, in these circumstances, the appropriate order is to allow
    the appeal in part and issue a
mandamus
order remitting the matter to
    the preliminary inquiry judge requiring him to commit the appellant for trial
    on the charge of second degree murder.

Robert J. Sharpe J.A.

R.A. Blair J.A.

Paul Rouleau J.A.


