CITATION:  R. v. Laframboise, 2007 ONCA 750

DATE: 20071105

DOCKET: C46707/C46714

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O., SIMMONS AND MacFARLAND JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

MARCEL LAFRAMBOISE & KYLE ODETTE

Appellants

Elise Nakelsky for the respondent

Vanessa Christie for the appellant, Marcel Laframboise Dirk Derstine for the appellant, Kyle Odette

Heard: November 2, 2007

On appeal from the decision of The Honourable Mr. Justice Quigley dated January 26, 2007 quashing their committal to stand trial on the charge of manslaughter and committing the Appellants to stand trial on the charges of second degree murder.

APPEAL BOOK ENDORSEMENT

[1]               In our view, the reviewing judge was correct when he concluded that the preliminary inquiry judge “committed a jurisdictional error by engaging in an exercise of weighing competing inferences to be drawn from the evidence.”

[2]               As but one example, we note the preliminary inquiry judge’s statement in his reasons to the effect that there was no reasonable inference available that Mr. Odette knew the victim was likely to freeze to death because of evidence which indicated that the victim “could have sought assistance or shelter.”

[3]               In our opinion, on its face, this reasoning demonstrates that the preliminary inquiry judge was weighing competing inferences in favour of the defence. Moreover, the error demonstrated by this example goes to the central issue in this case.

[4]               Having concluded correctly that the preliminary inquiry judge committed jurisdictional error, it was open to the reviewing judge to assess the sufficiency of the evidence in order to determine the appropriate remedy. We see no error in his conclusion in this respect. The appeal is therefore dismissed.