DATE: 20011030
DOCKET: C35546 C35543 C35547
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – ANN MARTIN, ANNE MARIE AIKINS, KELLY REDMOND
BEFORE:
FINLAYSON, AUSTIN and SHARPE JJ.A.
COUNSEL:
Gregory Lafontaine for Ann Martin
Diane Oleskiw for Anne Marie Aikins
Christopher Sherrin for Kelly Redmond
Robert Hubbard for the respondent
HEARD:
October 24, 2001
On appeal from the order of Mr. Justice Barry MacDougall dated November 28, 2000.
E N D O R S E M E N T
[1] The appellants were committed for trial on five counts for various offences arising from the alleged misuse of funds of the Barrie and District Rape Crisis Line. The charges arise from the payment the appellant Aikins’ legal costs in her unsuccessful defence on earlier criminal charges also involving the misappropriation of Crisis Line funds. The timeframe for the charges specified on the original information ran from February 1998 to July 1998. The preliminary inquiry judge extended this timeframe back to March 1, 1996.
[2] The appellants applied for certiorari to quash their committals. MacDougall J. quashed the committal on one count, ruled that there was no basis for the preliminary inquiry judge to extend the timeframe with respect to the appellants’ Redmond and Martin, but otherwise refused to quash the committals.
[3] We see no error on the part of MacDougall J. warranting this court’s intervention. As the appellants concede, the test to be applied by a preliminary inquiry judge in determining whether the evidence is sufficient for the purpose of a committal for trial is whether there is any evidence upon which a properly instructed jury, acting reasonably, could find guilt. It is well settled that where there is a scintilla of evidence upon which the preliminary inquiry judge could conclude that the test is satisfied, a reviewing court should not intervene to quash the committal. See also R. v. Russell, [2001] S.C.C. 53 where the Supreme Court of Canada reaffirmed the limited scope of review on certiorari to review committals for trial and reiterated that a preliminary inquiry judge’s determination of the sufficiency of evidence is entitled to the greatest deference. It is only if there is no evidence on an element of the offence that a reviewing court can vacate the committal.
[4] There was evidence of acts and participation in decisions by each of the appellants from which a trier of fact, properly instructed, could infer that in view of their positions as officers or directors of Crisis Line, they had the requisite knowledge and intention for the various offences charged.
[5] In view of the evidence of the direct involvement of the appellant Aikins in all relevant events leading to the charges, we would not interfere with MacDougall J.’s refusal to quash the extended timeframe for the charges she faces. In our view, it was open to the preliminary inquiry judge and the reviewing justice on certiorari to conclude on the basis of the test stated in R. v. Goldstein (1988), 42 C.C.C. (3d) 548 at 552, that in so far as Aikins is concerned, this entire period covered a series of connected acts extending over a period of time which proves the commission of the offence charged in the information.
[6] The respondent Crown contends that MacDougall J. erred in limiting the timeframe for the charges against the other appellants and asked us to “amend” the committal or the indictment accordingly. As the respondent did not cross-appeal this aspect of MacDougall J.’s order, we are not prepared to consider this issue and we express no view as to any other remedies the Crown may have in this regard.
[7] Accordingly, the appeals are dismissed.
“G.D. Finlayson J.A.”
“A.M. Austin J.A.”
“Robert J. Sharpe J.A.”