DATE: 20040123

DOCKET: C39847

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – M.J. (A Young Person) (Appellant)

BEFORE:

DOHERTY, ROSENBERG and MOLDAVER JJ.A.

COUNSEL:

Leslie Maunder for the appellant

Susanne Boucher for the respondent

HEARD:

January 20, 2004

On appeal from the conviction and sentence of Justice Morten of the Superior Court of Justice dated May 29, 2002 and January 30, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The reasons for judgment are inadequate. They do not come to grips with the defence contention that the appellant was an unwilling dupe of his mother. There was evidence to support that contention.

[2] The trial judge referred only to the change in the weight and appearance of the suitcase in concluding that the appellant knew that there was cocaine in the suitcase. The customs official did not notice anything suspicious in the suitcase until she took a very close examination. The weight increased by some two pounds.

[3] The reasons also suggest a reversal of onus. The trial judge said that it is “…not untoward that you knew” – “Untoward” suggests something fall short of proof beyond a reasonable doubt. The appeal must be allowed.

[4] The verdict is not unreasonable. A trier of fact could reasonably have concluded that the appellant knew there was cocaine in the suitcase.

[5] The appeal is allowed. The conviction is quashed and a new trial is ordered.