COURT OF APPEAL FOR ONTARIO
Doherty, Pepall and Benotto JJ.A.
C56620
Her Majesty the Queen
Respondent
and
Napoleon Rochester
Appellant
C57726
Her Majesty the Queen
Respondent
and
Yovidra Shiwshankar
Appellant
C57729
Her Majesty the Queen
Respondent
and
Rohan Shiwshankar
Appellant
C57118
Her Majesty the Queen
Respondent
and
Arraf Kassim
Appellant
Mitchell Chernovsky and Faisal Mirza, for the appellant Rochester
Brad Burgess, for the appellant Yovidra Shiwshankar
Anida Chiodo, for the appellant Rohan Shiwshankar
Sam Goldstein, for the appellant Kassim
Craig Harper, for the respondent
Heard: November 25, 2013
On appeal from the order of Justice Forestell of the Superior Court of Justice dated January 16, 2013.
APPEAL BOOK ENDORSEMENT
1We would dismiss the appeal. We agree with the motion judge that the preliminary inquiry judge, at para. 28, exceeded her limited jurisdiction by choosing between competing inferences reasonably available on the evidence and preferring the inference that favoured the appellant.
2At the preliminary inquiry, on the certiorari motion and on this appeal, counsel proceeded on the basis that the appellants’ liability depended on evidence from which it could be inferred that one of the appellants fired the weapon that inflicted the fatal shots. We accept that assumption for the purposes of the appeal, but should not be taken as accepting the legal correctness of that assumption. It may be that the trial judge will have to determine whether as a matter of law the appellants could be found liable even if the Crown could not prove that the fatal shots were fired by one of the appellants.
3Counsel for Yovidra argues in addition to the submissions advanced on behalf of all appellants that the evidence was incapable of placing Yovidra within the scheme to do violence to the deceased and his friends. It may be that the evidence against Yovidra is weaker than the evidence showing that the other appellants were party to the agreement to do violence to the deceased. That distinction is irrelevant for the purposes of determining the question of committal. We agree with the motion judge’s comments at para. 30 of her reasons.
4The appeals are dismissed.