DATE: 20050914

DOCKET: C43180

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ROBERT NASH (Appellant)

BEFORE:

WEILER, BLAIR and LAFORME JJ.A.

COUNSEL:

James Carlisle

for the appellant

Phil Downes

for the respondent

HEARD & ENDORSED:

September 9, 2005

On appeal from the judgment of Justice Michael R. Dambrot of the Superior Court of Justice dated September 17, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] As Dambrot J. correctly held, if the question of a “reasonable excuse” falls outside the essential elements of the offence – as Doherty J.A. held in R. v. Moser (1992), 71 C.C.C. (3d) 165 is the case – there can be no obligation on the Crown to negate it at a preliminary hearing. Further, the preliminary enquiry judge acts outside his or her jurisdiction by weighing the defence: R. v. Hynes (2001), 2001 SCC 82, 159 C.C.C. (3d) 359 (S.C.C.). We agree with Dambrot J. that in this case the preliminary enquiry judge effectively weighed the defence, concluded it would inevitably prevail, and therefore, discharged the accused. This he had no jurisdiction to do.

[2] We agree with the thorough reasons of Justice Dambrot save for his disposition directing that the preliminary enquiry judge order the appellant to stand trial which, in light of this court’s decision in R. v. Thomson, [2005] O.J. No. 1124, he could not do. The appeal is therefore dismissed, the discharge is quashed and the matter is referred back to the preliminary enquiry judge for determination in accordance with this order.