



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rochester,
2014 ONCA
    32

DATE: 20140114

DOCKET: C56620-C57726-C57729-C57118

Doherty, Pepall and Benotto JJ.A.

C56620

Her Majesty the Queen

Respondent

and

Napoleon Rochester

Appellant

C57726

Her Majesty the Queen

Respondent

and

Yovidra Shiwshankar

Appellant

C57729

Her Majesty the Queen

Respondent

and

Rohan Shiwshankar

Appellant

C57118

Her Majesty the Queen

Respondent

and

Arraf Kassim

Appellant

Mitchell Chernovsky and Faisal Mirza, for the appellant Rochester

Brad Burgess, for the appellant Yovidra Shiwshankar

Anida Chiodo, for the appellant Rohan Shiwshankar

Sam Goldstein, for the appellant Kassim

Craig Harper, for the respondent

Heard:  November 25, 2013

On appeal from the order of Justice Forestell of the
    Superior Court of Justice dated January 16, 2013.

APPEAL BOOK ENDORSEMENT

[1]

We would dismiss the appeal.  We agree with the motion judge that the
    preliminary inquiry judge, at para. 28, exceeded her limited jurisdiction by
    choosing between competing inferences reasonably available on the evidence and
    preferring the inference that favoured the appellant.

[2]

At the preliminary inquiry, on the
certiorari
motion and on this
    appeal, counsel proceeded on the basis that the appellants liability depended
    on evidence from which it could be inferred that one of the appellants fired
    the weapon that inflicted the fatal shots.  We accept that assumption for the
    purposes of the appeal, but should not be taken as accepting the legal
    correctness of that assumption. It may be that the trial judge will have to
    determine whether as a matter of law the appellants could be found liable even
    if the Crown could not prove that the fatal shots were fired by one of the
    appellants.

[3]

Counsel for Yovidra argues in addition to the submissions advanced on
    behalf of all appellants that the evidence was incapable of placing Yovidra
    within the scheme to do violence to the deceased and his friends.  It may be
    that the evidence against Yovidra is weaker than the evidence showing that the
    other appellants were party to the agreement to do violence to the deceased.  
    That distinction is irrelevant for the purposes of determining the question of
    committal.  We agree with the motion judges comments at para. 30 of her
    reasons.

[4]

The appeals are dismissed.


