DATE: 20050713

DOCKET: C42599

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – LATIF, MOHAMMED ABDUL (Respondent)

BEFORE:

ROSENBERG, MACFARLAND and ROULEAU JJ.A.

COUNSEL:

L. Hodgson

for the appellant

J. Lockyer and R. Posner

for the respondent

HEARD & RELEASED ORALLY:

July 11, 2005

On appeal from the order of The Honourable Associate Chief Justice Cunningham dated October 14, 2004.

E N D O R S E M E N T

[1] We agree with the result and the reasons of Associate Chief Justice Cunningham and accordingly the appeal is dismissed. We therefore need only briefly address the submissions made by crown counsel.

[2] As is conceded, Dobney J. misapprehended the evidence about the cause of death. This misapprehension affected her reasons and her decision to commit for trial. As the reviewing judge said the evidence of the pathologist supports the view that there was a non-culpable explanation for the death. The pathologists own evidence was that other possible causes of death, such as suffocation, were only speculation. There was also no evidence the fire was deliberately set. The other circumstantial evidence even when combined was, as the reviewing judge said, no more than speculation and suspicion. The crown relies on R. v. Charemski (1998), 1998 819 (SCC), 123 C.C.C. (3d) 225 (S.C.C.), but in that case there was a substantial body of evidence showing animus and motive and the accused made a statement showing knowledge of the manner of death before that had been disclosed.

[3] That is not this case. There is no evidence of motive or animus. His behaviour at the scene could not support an inference of consciousness of guilt. The neighbour, a light sleeper, heard no sounds of an altercation and there was no evidence either on the appellants’ body or the deceased remains to show physical attack.

[4] Accordingly, as indicated, the appeal is dismissed.

“M. Rosenberg J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A.”