COURT OF APPEAL FOR ONTARIO

DATE: 20060112

DOCKET: C43918

RE: HER MAJESTY THE QUEEN (Appellant) v. C.T. (Respondent)

BEFORE: DOHERTY, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Grace Choi for the appellant

Nicola Faieta for the respondent

HEARD & ENDORSED: January 12, 2006

On appeal from the decision of Justice D. McCombs of the Superior Court of Justice dated June 29, 2005.

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

[1] With respect, we disagree with the Superior Court judge’s holding that there was no jurisdictional error. In our view, the preliminary inquiry judge fell into jurisdictional error. He improperly restricted his review of the evidence by assuming that the children’s evidence as to how the injury occurred to the victim must be accepted as true. The veracity of their evidence was for the jury. By presuming their evidence was true, the preliminary inquiry judge effectively precluded consideration of the other evidence supporting the Crown’s position that the injury was deliberately inflicted.

[2] The preliminary inquiry judge also failed to consider the appellant’s post offence conduct. That conduct constituted circumstantial evidence capable of identifying the appellant as the perpetrator of the abuse.

[3] The discharge is set aside and pursuant to the mandamus application, the matter is remitted to the preliminary inquiry judge for committal on the charge of aggravated assault.