DATE: 20020618

DOCKET: C37295

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– CARLOS CLARKE (Appellant)

BEFORE:

CATZMAN, WEILER and FELDMAN JJ.A.

COUNSEL:

P. Andras Schreck, for the appellant

David Finley, for the respondent

HEARD:

June 12, 2002

RELEASED ORALLY:

June 12, 2002

The appellant appeals from the order of Justice Alan C.R. Whitten dated November 9, 2001 setting aside the discharge granted by Justice Bernd E. Zabel dated September 27, 2000 and committing the appellant to trial on a charge of second degree murder.

E N D O R S E M E N T

[1] [1] This is an appeal from an order of Whitten J. granting an application by the Crown for certiorari.

[2] [2] The appellant and his co-accused, Carmelita Willie, were charged with the second degree murder of their 14-month-old child. Following a lengthy preliminary inquiry, Ms. Willie was committed for trial and the appellant was discharged.

[3] [3] The preliminary inquiry justice’s reasons for committing Ms. Willie and discharging the appellant were terse and uninformative. They were accurately described by Mr. Finley as “boilerplate”. As Whitten J. observed, the effective absence of any reasons from the preliminary inquiry justice presented no guidance and considerable difficulty to any court hearing an application for certiorari to quash his order.

[4] [4] Whitten J. thoroughly reviewed the evidence at the preliminary inquiry and noted, correctly, that there was evidence of opportunity and circumstantial evidence of culpability against both the appellant and the co-accused. In the absence of any reasoned analysis for the discharge of the appellant, a consideration of the full evidentiary record, coupled with the committal of the co-accused, indicates that the preliminary inquiry justice must have engaged in jurisdictionally impermissible weighing of the evidence, choosing between competing inferences that could reasonably be drawn against the appellant and his co-accused. In doing so, he usurped the function of the trier of fact and thereby committed jurisdictional error.

[5] [5] Accordingly, Whitten J. was right to grant the Crown’s application for certiorari and to order that the appellant stand trial on the charge of second degree murder.

[6] [6] The appeal is dismissed.

Signed: “M.A. Catzman J.A.”

“K.M. Weiler J.A.”

“K. Feldman J.A.”