Court of Appeal for Ontario

Citation: R. v. Martin, 2010 ONCA 573

Date: 2010-09-03

Docket: C50987

Between:

Her Majesty The Queen Respondent

and

Nicholas Martin Appellant

Before: Blair, MacFarland, and Watt JJ.A.

Counsel: Michael Lacy and Melanie Dunn, for the appellant Rosella Cornaviera and Len Walker, for the respondent

Heard: September 2, 2010

On appeal from the decision of Justice Paul Kane of the Superior Court of Justice dated 31 July 2009.

APPEAL BOOK ENDORSEMENT

[1] The appeal is allowed.

[2] We agree with Mr. Lacy that the reviewing justice erred by turning "jurisdictional error" into "sufficiency review".

[3] The preliminary inquiry judge did not commit jurisdictional error. He correctly adopted and applied the test as set out in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. Reading his reasons as a whole it is clear that he considered all of the relevant evidence alleged by the Crown to give rise to both planning and deliberation and unlawful confinement, as well as the theory of the Crown on these issues, and concluded – as he was entitled to do on the record in our view – that the evidence was insufficient for a committal on first degree murder, as no jury properly instructed could reasonably infer guilt on that basis.

[4] The appeal is therefore allowed, the orders in lieu of certiorari and mandamus quashed, thereby restoring the committal for trial on the charge of second degree murder.