COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dwyer, 2013 ONCA 368

DATE: 20130604

DOCKET: C56407

Doherty, Simmons and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Lee Dwyer

Appellant

P. Andras Schreck and Dean F. Embry for the appellant

Suhail Akhtar for the respondent

Heard and released orally: May 23, 2013

On appeal from the judgment of Justice Bryan J. Shaughnessy of the Superior Court of Justice, dated November 21, 2012, dismissing a certiorari application requesting that the committal order of Justice S. MacLean of the Ontario Court of Justice, dated May 10, 2012 in relation to the charge of second degree murder be set aside.

ENDORSEMENT

[1] The appellant was committed to stand trial on the charge of second degree murder, robbery and aggravated assault by McLean J. The appellant had conceded committal on the robbery and aggravated assault charges but argued that he should be committed for manslaughter rather than second degree murder.

[2] His application for an order of certiorari quashing the committal for second degree murder was dismissed by Shaughnessy J. The appellant appeals that ruling and argues there was no evidence led at the preliminary hearing upon which a reasonable jury properly instructed could find that the appellant had the required mens rea in relation to a count of murder.

[3] In the appellant’s submission the preliminary inquiry judge and the reviewing justice did not appreciate the distinction between a possibility and some level of probability. As a result, the preliminary inquiry judge drew inferences that were unreasonable and amounted to mere speculation. We disagree.

[4] Reasonable inferences are not necessarily likely or probable inferences. The inference that is most favourable to the Crown must be drawn at the preliminary inquiry stage. Difficult inferences to draw may still nonetheless be reasonable.

[5] In justifying committal under s. 21(1) and s. 21(2), the preliminary inquiry judge and the reviewing justice carried out a detailed review of the evidence and the law. In our view, it is unnecessary to carry out a third review, as we see no error in their conclusion that the inferences necessary to warrant committal were reasonably available given the nature and quality of the appellant’s acts, the acts of his accomplices and the planning and execution of the robbery.

[6] The appeal is dismissed.

“D. Doherty J.A.”

“J.M. Simmons J.A.”

“Paul Rouleau J.A.”