BY KEITH LACEY
The driver of a transport truck involved in a collision that killed a Sudbury woman and her twin sons 14 months ago has been ordered to stand trial,
seven months after being cleared of charges at a preliminary hearing.
After provincial court judge Wayne Cohen ruled there was insufficient evidence for three counts of criminal negligence causing death to proceed against Michael Hickey, 43, in March, the Crown appealed.
Kelly Henderson and her sons Jordin and Corbin, 13, were killed when struck by a transport truck being driven by Hickey on Aug. 7, 2004 on Highway 69 near the Killarney turnoff.
Cohen ruled, following a lengthy preliminary hearing that stretched out over several months, there was not sufficient evidence to commit Hickey to trial.
A hearing was held a couple of weeks ago with assistant Crown attorney Len Walker asking a judge from the Superior Court of Justice to reconsider the case.
On Tuesday, Justice Robert Del Frate ruled Cohen had made serious errors in law during the preliminary hearing and the charges against Hickey should proceed to trial.
The Crown's argument there was sufficient evidence presented at the preliminary hearing to warrant a commital to trial against Hickey was accepted by Del Frate.
Cohen committed an error when he failed to apply the legal test of "any evidence" on which a reasonable jury properly instructed could convict the accused, ruled Del Frate.
Evidence from witnesses at the preliminary hearing about the condition of the transport truck, excessive speed, failure to observe deficiencies in the trailer and other factors clearly indicate there was enough evidence for this matter to proceed to trial, ruled Del Frate.
"In my opinion, the preliminary inquiry justice erred in weighing the sufficiency of the evidence as opposed to determining whether there was any evidence...by doing so, he has usurped the function of the jury," said Del Frate.
It is troubling Cohen did not give any reasons for his decision. This contravenes established legal principles, said Del Frate.
"Even if he was inclined to discharge...then appropriate substantiating reasons ought to have been given," he said. "I remit the matter to the
preliminary justice ordering him to commit (Hickey) for trial on all three counts of criminal negligence (causing death)."