DATE: 20060124

DOCKET: C44618

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and- A.V. (Appellant)

BEFORE:

LABROSSE, WEILER AND MACFARLAND

COUNSEL:

Jeffrey R. Schroeder and E. Nadeau

for the appellant

Shawn Porter

for the respondent

HEARD & RELEASED ORALLY:

January 16, 2006

On appeal from the judgment of O’Driscoll J. of the Superior Court of Justice dated December 12, 2005 made at Toronto, Ontario.

E N D O R S E M E N T

[1] The appellant appeals from the dismissal of his application for certiorari to quash his committal on a charge of first-degree murder. The appellant concedes there is evidence to warrant a committal for second-degree murder, but argues that there was insufficient evidence of planning and deliberation.

[2] A confrontation between two groups of young persons led to the shooting and killing of a member of one group.

[3] The scope of review on an application to quash a committal for trial based on insufficient evidence is extremely narrow, and the preliminary justice is entitled to the greatest deference. The test is whether there was some evidence capable of supporting the committal. See R. v. Desjardins (2004), 2004 SCC 76, 196 C.C.C. (3d) 1 (S.C.C.).

[4] In a case like the present one, where the evidence is circumstantial, the preliminary justice must engage in some weighing of the evidence, but only to a very limited extent.

[5] The Crown adduced evidence that the appellant bore animus towards the victim, that he threatened the victim, that he took steps to prepare for a confrontation, that he lured the victim to a pre-planned point of ambush and obtained a gun. There is evidence here that supports the inference of planning and deliberation as opposed to speculation.

[6] In our view, despite the alleged errors of the committing justice, there was some evidence upon which he could conclude, and upon which the appeal judge could rely, that the appellant waited in ambush so that he could shoot and kill the victim. There was some evidence upon which the committing justice could conclude that the murder was the product of planning and deliberation.

[7] We dismiss the appeal.