Court of Appeal for Ontario

Citation: R. v. McCallum, 2007 ONCA 795

Date: 2007-11-20

Docket: C46818

Between:

HER MAJESTY THE QUEEN Respondent

and

DANIEL McCALLUM Appellant

Before: DOHERTY, FELDMAN and ARMSTRONG JJ.A.

Counsel: Frank Miller for the appellant Deborah Krick for the respondent

Heard: November 15, 2007

On appeal from the dismissal of an application for certiorari to quash a committal for trial on a charge of second degree murder made by Justice J. Donohue of the Superior Court of Justice dated March 7, 2007.

APPEAL BOOK ENDORSEMENT

[1] Counsel have reviewed the evidence. We are satisfied that there is no basis in the evidence for the conclusion that a reasonable trier of fact could find that the appellant knew that death was a likely consequence of the bodily harm inflicted by the appellant. Crown counsel relies on the nature of the blow, the appellant’s anger, the victim’s intoxication and the appellant’s conduct immediately after the blow was struck. Those factors, considered cumulatively, do not provide a basis for the requisite inference.

[2] The committal on the charge of second degree murder must be quashed. Counsel are content that a committal on the charge of manslaughter should be substituted. So ordered.