DATE: 20040303

DOCKET: C40497

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – JEAN MARC COLLIN (Appellant)

BEFORE: FELDMAN, and SHARPE JJ.A. and McCOMBS J. (ad hoc)

COUNSEL: Sharon E. Levine and Seth P. Weinstein

For the appellant

Mary-Ellen Hurman

For the respondent

HEARD: March 1, 2004

RELEASED ORALLY: March 1, 2004

On appeal from the order of Justice D. J. Nadeau of the Superior Court of Justice dated July 17, 2003, dismissing the appellant’s application to quash his committal for trial on a charge of second-degree murder.

E N D O R S E M E N T

[1] We are all of the view that the application judge correctly concluded that the evidence adduced by the Crown at the preliminary inquiry provided a basis upon which the presiding judge could form the opinion that the evidence justified a committal for trial.

[2] The limited power of review of an application to quash a committal for trial was articulated by Martin J.A. in R. v. Tuske, [1978] O.J. No. 1253:

The reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he could form an opinion that the evidence is sufficient to put the accused on trial.

[3] We agree with the reviewing justice that there was “some evidence” of identity before the preliminary hearing judge. There was evidence of motive, opportunity, and several elements of post-offence conduct. In particular, there were a number of statements made by the appellant, including two where he placed himself at the murder scene. Further, there was evidence that the appellant divested himself of several items of clothing similar to those described by the eyewitness. Moreover, although there was potentially exculpatory evidence, in all the circumstances, the eyewitness’s evidence regarding the height and weight of the perpetrator, and the fur trim and colour of the boots was not sufficiently definitive to necessarily exclude the appellant.

[4] It follows that there was an evidentiary basis upon which, acting judicially, the preliminary hearing judge could form the opinion that the evidence was sufficient to commit for trial.

[5] The appeal is dismissed.

Signed: “K. Feldman J.A.”

_____ “Robert J. Sharpe J.A.”

_____ “D. McCombs J. (ad hoc)”