COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Appellant) – and – JIM UTTLEY Respondent
BEFORE:
CATZMAN, ABELLA, GILLESE JJ.A.
COUNSEL:
Kim Crosbie for the appellant
David A Harris for the respondent
HEARD & ENDORSED:
September 9, 2003
On appeal against the acquittal of Justice Theo Wolder of the Ontario Court of Justice dated June 6, 2002.
APPEAL BOOK ENDORSEMENT
1We agree with the Crown that the trial judge erred in importing into s. 430 of the Criminal Code the requirement of an additional offence.
2Section 429(2) of the Code requires a determination of whether the act in question was done with "legal justification", "excuse" or "colour of right". The trial judge did not undertake the appropriate analysis of s. 429(2) and, as a consequence, the acquittal cannot stand.
3The appeal is allowed and a new trial is directed.
"E.E. Gillese J.A."