W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

(4) [Repealed, 2005, c. 32, s. 18(2).] R.S., c. C-34, s. 467; R.S.C., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

R. v. Hickey, 2007 ONCA 845

CITATION: R. v. Hickey, 2007 ONCA 845

DATE: 20071205

DOCKET: C47524

COURT OF APPEAL FOR ONTARIO

ROSENBERG, LANG and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

MICHAEL HICKEY

Appellant

Crystal E. Tomusiak for the appellant

Leonard A. Walker and Joseph Perfetto for the respondent

Heard: November 30, 2007

On appeal from the order of Justice G. Bourke Smith of the Superior Court of Justice dated May 25, 2007, dismissing an application for certiorari of the order of Justice Wayne W. Cohen of the Ontario Court of Justice dated September 20, 2006.

ENDORSEMENT

[1] The primary argument raised by the appellant on this appeal of a committal for trial on criminal negligence causing death is that there was no evidence that the appellant’s conduct rose to the level of the wanton and reckless disregard for the lives and safety of others. The appellant argues that the preliminary inquiry judge accordingly ought to have ordered his discharge on the offence charged and only committed him for dangerous driving causing death. Further, the appellant argues that the reviewing judge erred in dismissing the appellant’s application for certiorari.

[2] The issues arise from an August 7, 2002 collision in which the tractor-trailer driven by the appellant tipped over into the northbound lane of Highway 69 resulting in the death of three people travelling in a northbound vehicle.

[3] There was evidence adduced at the preliminary inquiry that the appellant was told of the trailer’s tendency to lean to the left on corners and that the appellant should drive accordingly. There was also observation evidence that the tractor-trailer was being driven in excess of the speed limit and that at times, the trailer pitched back and forth from three to three-and-a-half feet off the tractor’s line, including onto the gravel shoulder on two occasions, and that the driver would have been aware of this motion. In fact, a driver following the appellant passed the tractor-trailer out of concern that it would tip. Expert evidence established the standards expected from commercial drivers and those standards required a visual inspection of the rig. Finally, there was evidence that the appellant did not inspect the trailer and about the visibility of the trailer’s mechanical condition, including the structure and attachment of an added fifth axle.

[4] On the basis of this and other evidence, the preliminary inquiry judge concluded that there was evidence upon which a reasonable jury properly instructed could return a verdict of guilty on criminal negligence causing death. This conclusion was upheld by the application judge on the certiorari application. We see no basis upon which to interfere with that result.

[5] On an application to review an order to stand trial, the standard of review is extremely limited. There need only be some evidence upon which the preliminary inquiry judge could form an opinion that the evidence was sufficient to justify the committal. As it is sometimes put, there need only be a scintilla of evidence. Evidence that the appellant drove above the speed limit going into a curve while knowing of the trailer’s tendency to lean and of the obvious poor condition of the trailer was sufficient to meet the scintilla of evidence standard.

[6] The appellant also raises a related ground of appeal based on the sufficiency of the reasons of the preliminary inquiry judge. In our view, those reasons were sufficient to explain to the appellant why he was being committed for trial on the basis of the total of the evidence considered by the preliminary inquiry judge.

[7] Accordingly, the appeal is dismissed.

“M. Rosenberg J.A.”

“S.E. Lang J.A.”

“Paul Rouleau J.A.”