COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adam, 2012 ONCA 582

DATE: 20120910

DOCKET: C54892

Rosenberg, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roble Nour Adam

Appellant

Counsel:

Roble Nour Adam, in person

Christopher R. Murphy, for amicus curiae

John C. Pearson, for the respondent

Heard: August 14, 2012

On appeal from the judgment of Justice Anne Marie Molloy of the Superior Court of Justice, dated December 16, 2011, granting certiorari setting aside the order of Justice William R. Wolski of the Ontario Court of Justice, dated January 28, 2011.

ENDORSEMENT

[1] The appellant appeals, with the assistance of amicus counsel, Mr. Murphy, from the decision of Molloy J. allowing an application by the Crown in the nature of certiorari to quash the decision of Wolski J. ordering the appellant to stand trial for second degree murder. Molloy J. allowed the Crown application and ordered that the applicant stand trial for first degree murder.

[2] The scope of review on a Crown application for certiorari is limited. However, in the circumstances of this case we agree with the application judge that the preliminary inquiry judge exceeded his jurisdiction in weighing the evidence and choosing between competing inferences.

[3] The preliminary inquiry judge exceeded his jurisdiction in finding that there was no evidence of planning and deliberation. The various pieces of evidence had to be considered cumulatively. In particular, the document found in the appellant’s possession had to be considered along with the other evidence. On its face it may not have shown an animus towards the deceased, but it did show that the appellant harboured a grudge against the deceased.

[4] More importantly, it would be open to the trier of fact to find that the appellant had obtained the knife used to kill the deceased some time before the attack on her. The manner in which the attack took place, not in the course of a struggle, but while the deceased was on the telephone, suggests that the appellant had the knife with him and that he attended at the deceased’s office for the purpose of killing her. The Crown did not have to establish exactly when the appellant obtained the knife or where he kept it prior to attacking the deceased. While a trier of fact might conclude at a trial that the appellant did not attend the office to kill the deceased, the other inference was available. It was not open to the preliminary inquiry judge to choose between competing inferences.

[5] Accordingly, the appeal is dismissed.

“M. Rosenberg J.A.”

“R.A. Blair J.A.”

“M. Tulloch J.A.”