WARNING
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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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(4) [Repealed, 2005, c. 32, s. 18(2).]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.
CITATION: R. v. Robinson, 2008 ONCA 810
DATE: 20081203
DOCKET: C48350 C49412
COURT OF APPEAL FOR ONTARIO
Goudge, MacFarland and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
And
Issaca Robinson; Keri-Lyn Bryck
Appellant
Michael Dineen for the appellant Robinson and Anik Morrow for the appellant Bryck
Leanne Salel for the respondent
Heard and released orally: November 28, 2008
On appeal from the order of Justice Bonnie L. Croll of the Superior Court of Justice dated November 19, 2007 dismissing his application to quash his committal for trial.
APPEAL BOOK ENDORSEMENT
[1] The appellants argue a denial of natural justice concerning the use of the hearsay evidence by the preliminary inquiry judge. In our view, reading the dialogue between the court and counsel, it is clear that the trial judge indicated the possibility that the evidence might be used for its truth, and that counsel then had the opportunity to address the issue and argue why that should not happen. There was no denial of the opportunity to make submissions on this issue. In addition, the hearsay evidence about the grandmother was adduced by counsel for one accused not the Crown and not objected to. The absence of a voir dire does not constitute jurisdictional error.
[2] As to the sufficiency of the evidence, Robinson being the driver, the evidence of the appellants as caregivers, their relationship to the child, the location of the child and the car seat, and the location and visibility of gun permit a sufficient inference of knowledge and control to warrant committal.
[3] The appeals are dismissed. This endorsement applies to both C48350 and C49412.