DATE: 20060113

DOCKET: C43613

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. FRANK GOIS and ROBERT MILLAR (Appellants)

BEFORE:

DOHERTY, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Brian Snell

for the appellants

Lance Beechener

for the respondent

HEARD: RELEASED ORALLY:

January 11, 2006 January 11, 2006

On appeal from the decision entered by Justice R. MacKinnon of the Superior Court of Justice dated May 2, 2005.

E N D O R S E M E N T

[1] We agree with the disposition of the Superior Court judge.

[2] In our view, the preliminary inquiry judge could only have reached the conclusion she did by engaging in improper weighing of the evidence.

[3] The complainant testified that while he was being assaulted and threatened with death by the appellants who were trying to collect a drug debt from him, Millar, one of the appellants, pulled out what the complainant testified was a 45 calibre handgun and threatened to kill the complainant and rape his grandmother. Millar repeatedly struck the complainant with the handgun. The complainant had seen this gun before and believed that the appellants kept it for “protection” in connection with their ongoing drug activities. The complainant testified that he thought the gun was real but conceded that it might have been a good replica.

[4] On the committal, the only issue was whether there was a basis upon which a jury could reasonably conclude that the handgun was in fact real and, therefore, a firearm within the operative definition.

[5] The preliminary inquiry judge in the course of her reasons referred to the absence of any evidence that the appellants pointed the gun at the complainant or threatened to shoot the complainant in the course of their threats to kill the complainant. The trial judge referred to the absence of this evidence in support of her conclusion that no reasonable jury could find that the gun was real.

[6] No doubt, evidence that the appellants pointed the gun directly at the complainant or threatened to shoot the complainant would have enforced the Crown’s case on this count. The absence of such evidence does not, however, determine the question of committal that the preliminary inquiry judge had to decide. That question had to be determined based on the evidence actually adduced before her. The preliminary inquiry judge had to decide, assuming the Crown’s evidence to be believed, whether a jury could reasonably conclude that the gun was real. In the face of the complainant’s evidence summarized above, the preliminary inquiry judge could only have discharged the appellants on this count if she went well beyond the very limited authority she had to weigh the evidence on the issue of committal. In our view, she could have discharged the appellants on this count only if she chose from among the competing inferences open on the complainant’s evidence. In doing so, she exceeded her jurisdiction.

[7] The appeal is dismissed.

“Doherty J.A.”

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”