DATE: 20040628

DOCKET: C40717

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – JANS PETER BJERREGAARD MATHISEN (Appellant)

BEFORE: LASKIN, FELDMAN and BLAIR JJ.A.

COUNSEL: Alexander H. Fiszauf for the appellant

Mary-Ellen Hurman for the respondent

HEARD: May 10, 2004

RELEASED ORALLY: May 10, 2004

On appeal from the order of Justice Jane A. Milanetti of the Superior Court of Justice, dated September 12, 2003, dismissing the application for certiorari to review the committal order of Justice Lawrence P. Thibideau of the Ontario Court of Justice dated February 26, 2003.

E N D O R S E M E N T

[1] The applicant was committed for trial on first degree murder. His application to quash the committal was dismissed. He now appeals the refusal to grant certiorari to this court. He submits that the preliminary inquiry judge impermissibly weighed the evidence or drew unreasonable inferences from the evidence on the issues of specific intent, planning and deliberation. In oral argument he focussed especially on the issue of deliberation and contended that there was a complete absence of evidence showing that this was a “deliberate murder”. We do not accept this submission. Instead, we agree with the reviewing justice that the preliminary inquiry judge weighed the evidence only to the limited extent permitted by the case law.

[1] The preliminary inquiry judge was faced with a body of circumstantial evidence, especially the evidence of the poisoning allegations. He weighed that evidence only to determine that it was capable of supporting the inferences sought by the Crown, while acknowledging that it was also capable of supporting inferences favourable to the accused. Moreover, in our view, the circumstantial evidence amounts to at least a “scintilla” of evidence on each of the elements of first degree murder, and from which the preliminary inquiry judge could form the opinion that the accused should be tried on that charge.

[2] Specifically, on the issue of deliberation we think that the preliminary inquiry judge correctly concluded that there was sufficient evidence, especially from the accused’s own statements, from which he could infer that the accused planned the murder and then “deliberated” or waited for the opportunity to commit it.

[3] Accordingly, the appeal is dismissed.

“John Laskin J.A.”

“K. Feldman J.A.”

“R.A. Blair J.A.”