Court File and Parties
COURT OF APPEAL FOR ONTARIO
Weiler, Simmons and Rouleau JJ.A.
BETWEEN:
Her Majesty the Queen Respondent
and
Douglas Muir Appellant
Counsel: Leslie Maunder for the appellant Joanne Stuart for the respondent
Heard: September 5, 2008
On appeal from a judgment of Justice Bonnie L. Croll of the Superior Court of Justice dated January 25, 2008, granting certiorari setting aside the order of Justice Ramez Khawly of the Ontario Court of Justice dated July 23, 2007, discharging the appellant.
APPEAL BOOK ENDORSEMENT
1In our opinion, although the preliminary inquiry judge correctly cited the test for committal and reviewed all of the evidence in conducting the limited weighing of the evidence he was required to do, he dealt with the evidence on a piecemeal basis. He did not come to his conclusion on the whole of the evidence. For example, in concluding that the flight of the appellant could not give rise to an inference of guilt the preliminary inquiry judge appears to have chosen among competing inferences in the evidence and set that evidence aside. He did not consider the particular piece of evidence along with all the other evidence as a whole. This was a jurisdictional error.
2We agree with Croll J. that the appellant’s discharge must be set aside and the matter remitted back. Accordingly, the appeal is dismissed.
