Court File and Parties

CITATION: R. v. Muir, 2008 ONCA 608

DATE: 20080908

DOCKET: C48334

COURT OF APPEAL FOR ONTARIO

Weiler, Simmons and Rouleau JJ.A.

BETWEEN:

Her Majesty the Queen Respondent

and

Douglas Muir Appellant

Counsel: Leslie Maunder for the appellant Joanne Stuart for the respondent

Heard: September 5, 2008

On appeal from a judgment of Justice Bonnie L. Croll of the Superior Court of Justice dated January 25, 2008, granting certiorari setting aside the order of Justice Ramez Khawly of the Ontario Court of Justice dated July 23, 2007, discharging the appellant.

APPEAL BOOK ENDORSEMENT

[1] In our opinion, although the preliminary inquiry judge correctly cited the test for committal and reviewed all of the evidence in conducting the limited weighing of the evidence he was required to do, he dealt with the evidence on a piecemeal basis. He did not come to his conclusion on the whole of the evidence. For example, in concluding that the flight of the appellant could not give rise to an inference of guilt the preliminary inquiry judge appears to have chosen among competing inferences in the evidence and set that evidence aside. He did not consider the particular piece of evidence along with all the other evidence as a whole. This was a jurisdictional error.

[2] We agree with Croll J. that the appellant’s discharge must be set aside and the matter remitted back. Accordingly, the appeal is dismissed.