Publication Ban Warnings

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therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (c) he or she is discharged; or (d) if he or she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(4) [Repealed, 2005, c. 32, s. 18(2).]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., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

WARNING An order restricting publication in this proceeding was made under s. 517 of the Criminal Code and continues to be in effect. This section of the Criminal Code provides:

517(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as (a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 17]

R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20210210 DOCKET: C68542

Feldman, Tulloch and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Mitchell Dubros Appellant

Counsel: Paul Robson, for the appellant Benita Wassenaar, for the respondent

Heard: February 3, 2021

On appeal from the order of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated July 27, 2020, with reasons reported at 2020 ONSC 4518 dismissing an application for certiorari to quash the order of Justice William Wolski of the Ontario Court of Justice, dated February 5, 2020, committing the appellant for trial.

Reasons for Decision

[1] Mitchell Dubros appeals from the order of the application judge who dismissed his application for certiorari in which he had sought to set aside his committal for trial on a charge of obstructing justice.

[2] We do not see any error in the application judge’s decision in this case. The application judge applied the proper test for the review of a committal for trial. A preliminary inquiry judge's determination of the sufficiency of evidence is entitled to the greatest deference.

[3] In this case, the evidence clearly met the threshold evidentiary test for committal which is whether there is “any evidence” on which a jury, properly instructed, could return a guilty verdict: United States of America v. Shepard, [1977] 2 S.C.R. 1067 at p. 1080; R. v. Wilson, 2016 ONCA 235, at para. 21. In particular, the application judge agreed with the preliminary inquiry judge that there was evidence that the appellant had made threats to individuals in an effort to dissuade them from testifying at a trial. This would constitute obstruction of justice as defined in s. 139(3) of the Criminal Code, namely, that a person is deemed to have wilfully attempted to obstruct justice if they attempt to dissuade a person by threats from giving evidence.

[4] We do not accept the appellant’s submissions that there was no evidence respecting the required mental element of the offence. The contents of the conversations that the appellant had with these individuals would be sufficient to establish that the appellant’s efforts were willfully undertaken.

[5] The appeal is dismissed.

“K. Feldman J.A.” “M. Tulloch J.A.” “I.V.B. Nordheimer J.A.”