Court of Appeal for Ontario

Citation: R. v. Ceballo, 2007 ONCA 715
Date: 2007-10-19
Docket: C46290

Before: Doherty, Blair JJ.A. and Then J. (ad hoc)

Between:

Her Majesty the Queen, Respondent

and

Roberto Ceballo, Appellant

Counsel:
David E. Harris for the appellant
Laura Hodgson for the respondent

Heard and orally released: October 16, 2007

On appeal from the order of Justice B.L. Croll of the Superior Court of Justice dated November 3, 2006.

Endorsement

[1] The arguments on committal at the preliminary inquiry were framed in terms of the appellant’s potential liability for first degree murder through a combination of s. 21(2) of the Criminal Code and s. 231(5) of the Criminal Code. The court below committed for trial on the basis that there was evidence upon which a jury could find liability for murder through s. 21(2) and liability for first degree murder through s. 231(5).

[2] Counsel on appeal argued that those two sections cannot be combined to found liability for first degree murder. We regard this as an open question of law. We also conclude that if the trial judge was wrong in combining the two sections as a basis for committal, the error was one of law rather than jurisdiction. Ultimately, the question on this appeal is whether there was a basis in the evidence upon which the justice could commit for trial on first degree murder.

[3] We agree with the Crown’s submission that there was evidence from which a reasonable trier of fact could conclude that the appellant aided and abetted in the two murders committed by his co-accused in the course of the robbery and forcible confinement. We also agree with the Crown that there was an evidentiary basis upon which a reasonable trier of fact could conclude that the actions of the appellant pass the causation threshold described in the leading case of R. v. Harbottle.

[4] We acknowledge the force of the argument that the Crown at the preliminary inquiry did not contend that the appellant should be committed on the basis now advanced. If we thought that there was any possible prejudice to the appellant, we would remit the matter to the lower court for a continuation of the preliminary inquiry. There is no suggestion that the conduct of the inquiry would have been any different if aiding and abetting was squarely advanced as a basis for liability. Nor do we believe that any result other than a committal on first degree murder would be appropriate were the matter remitted for argument on this point. In our view, the evidence admits of only one answer – there is an evidentiary basis for committal on the charge of first degree murder through the combined effect of aiding and abetting and s. 231(5) of the Criminal Code. Consequently, the appeal must be dismissed.

“Doherty J.A.”

“R.A. Blair J.A.”

“Edward Then J. (ad hoc)”