DATE: 20040216

DOCKET: C40245

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) v. VASANTHAN MANICKAVASAGAR (Respondent)

BEFORE: DOHERTY, LASKIN and GILLESE JJ.A.

COUNSEL: Philip Perlmutter

for the appellant

Paul Slocombe

for the respondent

HEARD: February 12, 2004

ORALLY

RELEASED: February 12, 2004

On appeal from the order of Justice Nordheimer, of the Superior Court of Justice, dated June 10, 2003.

E N D O R S E M E N T

[1] This is an appeal by the Crown from an order quashing the respondent’s committal for trial on various charges. It was the position of the Crown that the respondent and a friend were racing their cars along a city street when the friend lost control of his car and struck another car resulting in an horrendous accident. The issue insofar as the respondent was concerned was whether he was the driver of the second car. The Crown led evidence of certain statements made by the respondent as well as evidence of witnesses who witnessed the accident.

[2] In our view, the application judge erred in law by treating the application to quash as, in effect, an appeal from the order committing the accused to stand trial. After summarizing the evidence, the application judge said the following:

It is clear that, in this case, in order to make a finding of guilt, a jury would have to be satisfied beyond a reasonable doubt that the applicant was the driver of the second car. In my view, there was insufficient evidence placed before the judge below on that issue such as could sustain a committal for trial. [Emphasis added.]

[3] Later in his reasons, the application judge observed:

In order to justify placing an individual on trial for a criminal offence there must found to be sufficient evidence upon which a reasonable jury properly instructed could return a verdict of guilty. If there is an absence of such evidence, then a committal in such circumstances amounts to an error in jurisdiction. I conclude that the evidence presented at the preliminary inquiry in this case was insufficient to satisfy the test. [Emphasis added.]

[4] On an application to quash a committal for trial based on the contention that the evidence could not support the committal, the application judge does not weigh the evidence against the committal for trial standard, but must only decide whether there was any evidentiary basis upon which the court below could form the opinion that the evidence was sufficient to justify a committal for trial. As Justice Martin put it in R. v. Tuske, [1978] O.J. No. 1253:

The reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he could form an opinion that the evidence is sufficient to put the accused on trial.

[5] The evidence reviewed in Crown counsel’s factum at para. 31 provided a basis upon which the justice presiding at the preliminary inquiry could form the opinion that the evidence justified a committal for trial. The correctness of that opinion was beyond the application judge’s limited role on a motion to quash the committal for trial.

[6] The appeal is allowed, the order below is set aside and the order committing the respondent for trial is restored.

“Doherty J.A.”

“John Laskin J.A.”

“E.E. Gillese J.A.”