R. v. Smith, 2009 ONCA 454

CITATION: R. v. Smith, 2009 ONCA 454

DATE: 20090601

DOCKET: C49671

COURT OF APPEAL FOR ONTARIO

Moldaver, Armstrong and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Andrew Tevoi Smith

Appellant

Counsel:

David Midanik for the appellant

Lucy Cecchetto and Andrew Sabbadini for the respondent

Heard and endorsed: May 15, 2009

On appeal from the order of Justice Frank Marrocco of the Superior Court of Justice dated October 27, 2008.

APPEAL BOOK ENDORSEMENT

[1] This is a second review of this matter. Marrocco J. engaged in a careful review of Lipson J.’s comprehensive reasons for committing the appellant to stand trial on a charge of manslaughter and he found no jurisdictional error.

[2] We have reviewed both sets of reasons, in the context of the record as a whole and the arguments made by the appellant and we see no error in Marrocco J.’s analysis or his conclusion.

[3] In short, we are satisfied that it was open for Lipson J. to conclude, as he did, that a reasonable jury, properly instructed and acting judicially, could find that the appellant was part of the MEW group, that he formed an intention in common with other members of the group to assault and intimidate persons believed to be rival gang members (or people associated with rival gang members) and to assist each other therein and that in carrying out the common unlawful purpose, he knew or should have known, that bodily harm of a more than transient or trifling nature was likely to result, having regard to the dangerous activity the MEW group was engaged in.

[4] Accordingly, the appeal is dismissed. We note, before leaving the matter, that it is at the preliminary hearing stage and that no findings of fact have been made. We should not be taken as commenting in any way on the strength of the Crown’s case, other than to affirm that it meets the threshold needed to support the committal.