R. v. Smith, 2009 ONCA 454

APPEAL BOOK ENDORSEMENT

1This is a second review of this matter. Marrocco J. engaged in a careful review of Lipson J.’s comprehensive reasons for committing the appellant to stand trial on a charge of manslaughter and he found no jurisdictional error.

2We have reviewed both sets of reasons, in the context of the record as a whole and the arguments made by the appellant and we see no error in Marrocco J.’s analysis or his conclusion.

3In short, we are satisfied that it was open for Lipson J. to conclude, as he did, that a reasonable jury, properly instructed and acting judicially, could find that the appellant was part of the MEW group, that he formed an intention in common with other members of the group to assault and intimidate persons believed to be rival gang members (or people associated with rival gang members) and to assist each other therein and that in carrying out the common unlawful purpose, he knew or should have known, that bodily harm of a more than transient or trifling nature was likely to result, having regard to the dangerous activity the MEW group was engaged in.

4Accordingly, the appeal is dismissed. We note, before leaving the matter, that it is at the preliminary hearing stage and that no findings of fact have been made. We should not be taken as commenting in any way on the strength of the Crown’s case, other than to affirm that it meets the threshold needed to support the committal.