



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
    shall publish the name of a young person, or any other information related to a
    young person, if it would identify the young person as a young person dealt
    with under this Act.

111(1)          Subject to this section, no person
    shall publish the name of a child or young person, or any other information
    related to a child or a young person, if it would identify the child or young
    person as having been a victim of, or as having appeared as a witness in
    connection with, an offence committed or alleged to have been committed by a
    young person.

138(1)          Every person who contravenes
    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless
    authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
    by school) or (1.15) (information to be kept separate), 45(2) (destruction of
    records) or 46(1) (prohibition against disclosure) of the
Young Offenders
    Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
    to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
    conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.K., 2014
    ONCA 138

DATE: 20140224

DOCKET: C57125

Rosenberg, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.K.

(A Young Person)

Appellant

Jonathan Dawe, for the appellant

Alison Wheeler, for the respondent

Heard: February 7, 2014

On appeal from the judgment of Justice Michelle Fuerst of
    the Superior Court of Justice, dated May 9, 2013, granting certiorari setting
    aside the order of Justice P.N. Bourque of the Ontario Court of Justice, dated
    October 15, 2012, discharging the appellant on the charge of first degree
    murder.

ENDORSEMENT

[1]

The appellant appeals from the judgment of Fuerst J. allowing an
    application by the Crown for
certiorari
with
mandamus
in aid
    quashing the appellants discharge on the charge of first degree murder and
    remitting the matter to the preliminary inquiry judge with a direction to
    commit on the charge of first degree murder.

[2]

We agree with the application judge that there was jurisdictional error
    requiring that the discharge on first degree murder be set aside. She has set
    out those errors with clarity and we agree that the preliminary inquiry judge
    exceeded his jurisdiction by choosing between competing inferences. The main
    issue was knowledge of the likelihood of death under both s. 229(a)(ii) and (c)
    of the
Criminal Code
. In the circumstances of this case, the finding
    by the preliminary inquiry judge that there was some evidence to support that
    inference was determinative of that element of the offence. It was not for the
    preliminary inquiry judge to prefer the inference that the appellant panicked
    when there was sufficient evidence to support the inference of knowledge of the
    likelihood of death. In the result, the preliminary inquiry judge failed to
    consider a body of other evidence that also supported the knowledge element of
    the offences.

[3]

The application judge also identified legal errors by the preliminary
    inquiry judge in relation to the elements of the offence as defined in s.
    229(c). We agree with the appellant that it will be for the trial judge to
    determine the basis upon which murder should be put to the jury. Because of the
    manner in which the case was put before this court, we did not have full
    argument on this issue. It will be for the trial judge, based on the evidence
    at trial, to determine how this courts decision in
R. v. Shand
,
2011 ONCA 5 applies.

[4]

Finally, we are satisfied that the trial judge did not err in granting
mandamus
and returning the matter to the preliminary inquiry judge with a direction to
    commit on first degree murder. In our view, the availability of
mandamus
for this purpose has been settled by this courts decision in
R. v. Thomson
(2005), 74 O.R. (3d) 721. We agree with the appellant that there may well be
    cases where, despite a jurisdictional error, committal on the charged offence
    is not legally inevitable and the matter must be returned to the preliminary
    inquiry judge to consider anew the question of committal. This is not one of
    those cases. As we have said, even on the preliminary inquiry judges own
    reasons, there was some evidence to support the committal for first degree
    murder.  A consideration of the entire body of evidence makes the committal for
    the full offence inevitable.

[5]

Accordingly, the appeal is dismissed.

M. Rosenberg J.A.

E.E. Gillese J.A.

M.L. Benotto J.A.


