DATE: 20050914
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – ROBERT NASH (Appellant)
BEFORE:
WEILER, BLAIR and LAFORME JJ.A.
COUNSEL:
James Carlisle
for the appellant
Phil Downes
for the respondent
HEARD & ENDORSED:
September 9, 2005
On appeal from the judgment of Justice Michael R. Dambrot of the Superior Court of Justice dated September 17, 2004.
A P P E A L B O O K E N D O R S E M E N T
1As Dambrot J. correctly held, if the question of a “reasonable excuse” falls outside the essential elements of the offence – as Doherty J.A. held in R. v. Moser (1992), 71 C.C.C. (3d) 165 is the case – there can be no obligation on the Crown to negate it at a preliminary hearing. Further, the preliminary enquiry judge acts outside his or her jurisdiction by weighing the defence: R. v. Hynes (2001), 2001 SCC 82, 159 C.C.C. (3d) 359 (S.C.C.). We agree with Dambrot J. that in this case the preliminary enquiry judge effectively weighed the defence, concluded it would inevitably prevail, and therefore, discharged the accused. This he had no jurisdiction to do.
2We agree with the thorough reasons of Justice Dambrot save for his disposition directing that the preliminary enquiry judge order the appellant to stand trial which, in light of this court’s decision in R. v. Thomson, [2005] O.J. No. 1124, he could not do. The appeal is therefore dismissed, the discharge is quashed and the matter is referred back to the preliminary enquiry judge for determination in accordance with this order.