DATE: 20040525

DOCKET: C40969

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – RALYN MCFARLANE (Appellant)

BEFORE: MACPHERSON, CRONK and GILLESE JJ.A.

COUNSEL: E. Bruce Olmsted for the appellant Anya Weiler for the respondent

HEARD: May 20, 2004

On appeal from the order of Justice Arthur M. Gans of the Superior Court of Justice dated October 29, 2003 denying the application for certiorari from the decision of Justice David A. Fairgrieve of the Ontario Court of Justice dated April 28, 2003 committing the appellant to trial.

E N D O R S E M E N T

Released Orally: May 20, 2004

[1] On April 28, 2003, following a preliminary hearing before Fairgrieve J. of the Court of Justice, the appellant was committed for trial on charges of trafficking cocaine, possession for the purpose of trafficking, possession of cocaine and possession of the proceeds of crime. On October 10, 2003, the appellant brought an application for certiorari to quash the committal. On October 29, 2003, Gans J. of the Superior Court of Justice denied the application. The appellant appeals that order on two bases: (1) on the trafficking charge, there is no evidence to establish that the substance involved was cocaine; and (2) on the other charges, there is no evidence to link the appellant to the drugs and money in the apartment.

[2] We disagree. A court reviewing the propriety of a committal order should not interfere with the order if there is "some evidence" or "a scintilla of evidence" respecting each essential element of the offence charged: see R. v. Skogman (1984), 13 C.C.C. (3d) 161 at 173 (S.C.C.). This case meets that very low threshold.

[3] On the trafficking charge, there was police evidence that the appellant made a hand-to-hand exchange with an unidentified individual, who in turn sold something to a purchaser, Everett Tugwell. Mr. Tugwell was arrested. At the appellant's preliminary hearing, Mr. Tugwell testified that he paid $4000 for cocaine in this purchase. This evidence meets the threshold.

[4] On the other charges, the drugs and money were found inside an apartment to which the appellant had a key on his person when he was arrested. The transactions involving the appellant, an unidentified person and Mr. Tugwell occurred in the parking lot of this apartment building.

[5] The appeal is dismissed.

"J. C. MacPherson J.A."

"E. A. Cronk J.A."

"E. E. Gillese J.A."