R. v. Quinn, 2008 ONCA 642

1The appellant appeals the order quashing his discharge on a charge of first degree murder. He does not contest his committal for second degree murder.

2The preliminary hearing judge found that the pathologist’s evidence that blunt and compressive force was applied to the deceased’s wrists was not capable of supporting an inference of forcible confinement. In arriving at that conclusion he reviewed the evidence the deceased was free to come and go from the appellant’s apartment and there was no yelling or screaming heard by close neighbours through paper-thin walls. He concluded “All of that militates against forcible confinement”. The preliminary hearing judge recognized there were “competing inferences of restraint or lack thereof” but then added “no reasonable jury, properly instructed, could arrive at a conclusion that one predominates over the other”.

3In approaching the evidence in this way, the preliminary hearing judge committed jurisdictional error by improperly weighing competing inferences. We agree with the reviewing judge’s reasons and disposition. The appeal is dismissed.