DATE: 20030911 DOCKET: C38465

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

[1] We agree with the Crown that the trial judge erred in importing into s. 430 of the Criminal Code the requirement of an additional offence.

[2] Section 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.

[3] The appeal is allowed and a new trial is directed.

"E.E. Gillese J.A."