W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding concerning the identity of and any information that would disclose the identity of the complainant, has been made and continues.
DATE: 20050826
COURT OF APPEAL FOR ONTARIO
WEILER, SIMMONS and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Marie Heinen and Jennifer Gleitman for the appellant, Marc Hazout
Respondent
Richard Litkowski for the appellant, Laurent Hazout
- and -
Erika Chozik for the respondent
MARC HAZOUT and LAURENT HAZOUT
Appellants
Heard: June 13, 2005
On appeal from the judgment of Justice Michael R. Dambrot of the Superior Court of Justice dated June 26, 2002.
GILLESE J.A.:
1Marc Hazout, Laurent Hazout, Ron Hadida, and Sarbjit Hayre were charged with assaulting, kidnapping, and confining D.F. on October 3, 1996. They were also charged with extorting from D.F. the use of his catering licence for their benefit. In addition, Laurent Hazout and Sarbjit Hayre were charged with attempting to obstruct justice on June 22, 1997.
2On June 23, 1999, Marc Hazout and Laurent Hazout were convicted of assault, kidnapping, and extortion. Both were sentenced to a conditional sentence of 6 months followed by 2 years probation. They served their sentences but appealed their convictions. In March 2001, this court overturned the convictions and ordered a new trial.
3The appellants, Marc Hazout and Laurent Hazout, were tried for the second time in front of Dambrot J. At the outset of the retrial, they requested an adjournment to retain counsel, which the trial judge denied. The matter proceeded with both appellants unrepresented. Marc Hazout and Laurent Hazout were found guilty of kidnapping and extortion and sentenced to 18 months and 15 months, respectively, to be served conditionally.
4The appellants have again served their sentences but appeal their convictions.
5For the reasons that follow, I would dismiss the appeal.
BACKGROUND
6D.F. and Marc Hazout each owned a nightclub in Toronto. D.F. met Marc through Wesley Thuro, who leased lighting and sound equipment to Marc’s club. D.F.’s liquor licence permitted him to accept catering engagements at other locations. In August and early September 1996, he provided liquor to Marc’s club because Marc had difficulty getting his own liquor licence. Shortly thereafter, however, D.F. became dissatisfied with the arrangement, and on September 9, 1996, he sent Marc a letter threatening to cancel the catering for an upcoming event. He complained that he had not received a $5000 deposit, menu proposal, or a signed contract for an upcoming event and that he had not received reports concerning the last event.
7Marc paid some of the outstanding monies owed to D.F. and D.F. agreed to cater the upcoming event. On October 1, 1996, D.F. found out that Thuro had removed the lights from Marc’s club for non-payment. D.F. tried to contact Marc to speak with him about money and inventory problems but he was unable to get a response from Marc.
8On October 3, 1996, D.F. went to a nightclub in downtown Toronto. After he left the club and got into his car, Marc appeared and began knocking on his window. D.F. got out of his car at which point he was surrounded by Laurent, Hayre, and Hadida who punched him and forced him into the back seat of a car.
9The men threatened and beat D.F.. They demanded that D.F. convince Thuro to put the sound and lighting equipment back into the club. Before dropping him near Thuro’s residence, they made D.F. write out on a piece of paper that he agreed to cater for them indefinitely. When D.F. was in Thuro’s house, he recounted what had happened to him that night, and Thuro agreed to reinstall the lighting and sound equipment in the club.
10D.F. reported these events to the police on October 5, 1996. All four men were charged with assault causing bodily harm, kidnapping, unlawful confinement, and extortion.
PROCEEDINGS RELATED TO THE FIRST TRIAL
11On April 14, 1998, the date for Marc and Laurent’s first trial was set for August 24, 1998. On August 24, 1998, Marc requested an adjournment to retain counsel. The adjournment was granted and the trial was set for September 14, 1998. On September 14, 1998, the trial was adjourned to March 22, 1999, to proceed with or without counsel.
12On March 22, 1999, the trial was adjourned to June 23, 1999. On June 23, 1999, Marc requested an adjournment on the basis that he was unrepresented. The adjournment request was denied and the trial proceeded that day. Laurent was represented by counsel.
13By the time of the first trial, Hayre and Hadida had both plead guilty to kidnapping and extortion. They testified as Crown witnesses at Marc and Laurent’s trial. Marc and Laurent were found guilty of assault, kidnapping, and extortion; the charge of confinement was stayed. Laurent was also found guilty of obstructing justice. Marc and Laurent were each sentenced to 6 months to be served conditionally, and 2 years probation. They successfully appealed from conviction and a new trial was ordered.
PROCEEDINGS RELATED TO THE SECOND TRIAL
14On August 30, 2001, Marc informed the court that he had retained Christopher Buhr to represent him; Laurent was still in the process of retaining counsel. The matter was adjourned to September 20, 2001, to set a date for pre-trial.
15On September 20, 2001, the judicial pre-trial was set for October 30, 2001. Laurent indicated to the court that although he was represented, he wished to retain another lawyer; he was confident that he would not be approved by legal aid.
16On October 1, 2001, Mr. Buhr died.
17On October 30, 2001, an agent for Mr. Buhr’s partner appeared to reschedule the pre-trial. The pre-trial was adjourned to November 21, 2001.
18On November 21, 2001, the pre‑trial took place. Russell Silverstein appeared for Laurent and Shayne Kert appeared for Marc. Mr. Silverstein indicated that both Marc and Laurent would need a significant amount of time to retain counsel and asked that the trial be scheduled for the new year. The matter was adjourned to January 7, 2002, to set a date for trial. It was clear, as a result of the pre-trial, that the matter would go to trial.
19On January 7, 2002, the assigned Crown was out of town so the matter was adjourned for 3 days.
20On January 10, 2002, Marc indicated that he did not qualify for legal aid and that the first trial and subsequent appeal had hindered his ability to earn an income sufficient to allow him to hire a lawyer. Counsel appeared on behalf of Laurent and indicated that he needed more time to be retained because Laurent had been denied legal aid and was not sure if he could afford counsel. The matter was adjourned to April 8, 2002, to set a date for trial. The adjournment was granted to allow Marc and Laurent to retain counsel.
21On April 8, 2002, Marc and Laurent appeared without counsel. Over their objections, the trial was set for 7 days to begin on June 17, 2002. Both Marc and Laurent expressed concerns about not being able to afford a lawyer.
22On Friday, June 14, 2002, Marc retained Joseph Bloomenfeld to represent him at trial. On June 17, 2002, Lou Strezos appeared on behalf of Mr. Bloomenfeld, and indicated that Mr. Bloomenfeld was not available to conduct the trial on that date. He stated that Mr. Bloomenfeld would be available for trial during the week of August 19‑26, 2002, or alternatively, for 4 days commencing January 20, 2003, and 4 days commencing April 21, 2003. The Crown opposed the adjournment request. There were no court dates available in August.
23Justice Dambrot refused to grant the adjournment. He observed that he was “always loathe…to force an accused on for trial in an indictable matter where that accused is not represented by counsel and has some prospect of retaining counsel in the future”. He went on to state, “That does not mean, however, that accused persons have the right to control the process of the court”. He concluded:
In this case, we have an accused who is charged with offences that are alleged to have taken place almost six years ago. We have an accused who has a history of seeking adjournments in order to retain counsel. We have a case where the witnesses are ready to proceed. We have a case where this court, since the matter was returned to it after the decision of the Court of Appeal, month after month has given the accused the opportunity to retain and instruct counsel of his choice. We have a situation where one judge of this court in January consciously gave the accused a three‑month adjournment for the purpose of retaining counsel and marked that return date in April as peremptory for the fixing of a trial date. In April, he was faced with that accused once again appearing without counsel and wanted time to retain counsel. Not being content with a trial date in June, however, but not advising the court that there was some specific timeframe in which he could assure the court that he would have counsel finally on the trial date, a June trial date was set.
Today, Marc Hazout comes before the court telling the court that he retained counsel or hasn’t retained counsel but has found counsel who will be willing to take the retainer as long as the case could be tried whether in a time frame in August of this year, which is unrealistic, or in 2003. I do not say on the record before me that the accused has come before this court with this position without proper notice, as I understand the situation, as a ploy to delay the proceedings. I do not say that. What I do say is that this accused has shown a complete absence of diligence in having counsel available to try this matter today.
24The matter proceeded the next day, June 18, 2002, with neither Marc nor Laurent represented by counsel.
25At the start of trial, Marc stated that neither he nor his brother were capable of representing themselves. Laurent did not call any evidence in his defence. Marc called and examined 3 alibi witnesses, all of whom claimed that they were with him on the night of the offence. Neither Marc nor Laurent testified.
26During the trial, Hayre claimed that he did not remember the events of October 3, 1996. The Crown brought a K.G.B. application to admit Hayre’s testimony from the first trial for the truth of its contents. The trial judge postponed his ruling until the end of the Crown case and then admitted it.
27On June 26, 2002, Marc and Laurent were convicted of kidnapping and extortion. They were acquitted of assault and the charge of confinement was stayed.
28After conviction, Marc asked for an adjournment to consult with counsel about sentencing. The trial judge refused the request and sentenced Marc to an 18-month conditional sentence and Laurent to a 16-month conditional sentence.
THE ISSUES
29Marc and Laurent submit that the trial judge erred in:
(1) refusing Marc’s request for an adjournment;
(2) not adequately assisting Marc and Laurent with procedural matters and their decision not to testify;
(3) the timing of his ruling on the Crown’s K.G.B. motion;
(4) admitting prejudicial evidence;
(5) rejecting the alibi evidence;
(6) admitting Hayre’s prior testimony; and
(7) refusing to postpone sentencing.
REFUSAL TO GRANT AN ADJOURNMENT
30Counsel for Marc submits that the trial judge erred in refusing Marc’s request for an adjournment to a date when his counsel was available.
31When an accused person requests an adjournment of his or her trial on the date set for trial, the trial judge is required to balance two rights. The first is the accused’s constitutional right to be represented by counsel including, when possible, counsel of choice. This is a fundamental right vigorously guarded by the court. The second is the trial judge’s right to control the trial process, a right that includes a wide discretion to grant and refuse adjournments. An appellate court should only interfere with a trial judge’s balancing of these rights if the refusal of an adjournment deprives an accused of a fair trial or the appearance of a fair trial. See R. v. McCallen (1999), 1999 3685 (ON CA), 43 O.R. (3d) 56 (C.A.); R. v. Nichols (2001), 2001 5680 (ON CA), 148 O.A.C. 344, leave to appeal to S.C.C. dismissed [2002] 1 S.C.R. viii.
32In my view, it would have been preferable had the trial judge granted the adjournment. In light of the fact that Marc had previously been tried and convicted, and served his sentence from that trial, and that this was a retrial, the scales should have been tipped in his favour. This was not a jury trial. There is no evidence that any witnesses would have been inconvenienced by a lengthy adjournment. Marc’s express reason for delay was his ineligibility for legal aid and his financial situation did not permit him to retain counsel privately for a trial. The fresh evidence admitted on appeal, with the consent of the Crown, indicates that Marc hoped that the counsel he had retained for the pre-trial would resolve the matter by having the charges dropped. Nothing in the record refutes Marc’s submission that his decision to retain Mr. Bloomenfeld was made in good faith.
33That said, when the June trial date was set on April 8, 2002, it was not the first trial date for the retrial and there was no evidence that Marc could not have borrowed the money to retain counsel earlier or entered into a payment schedule with counsel as he had previously done in respect of his first trial. There was a lengthy history of Marc requesting adjournments in order to retain counsel. Marc’s very recently retained counsel had restricted availability for a lengthy period. While Mr. Bloomenfeld was available for trial in August, as the trial judge noted, the summer schedule had been set for some time and there was no court time available in August. The next available date provided by the trial coordinator for a 7-day trial was October 28, 2002, when Mr. Bloomenfeld was unavailable. The first available date after October 28 that would accommodate Mr. Bloomenfeld’s schedule was January of the following year, when 4 days were available for trial. The balance of the trial would have had to be completed some months later.
34Thus, I am not persuaded that the trial judge’s ruling deprived Marc of a fair trial or the appearance of a fair trial. The trial judge carefully balanced the two rights. He took into consideration a number of factors in refusing to grant the adjournment including Marc’s history of seeking adjournments to retain counsel; the fact that the witnesses were ready to proceed; the numerous opportunities that Marc had been given to obtain counsel; the fact that Marc’s counsel could not appear until August 2002, a time when the sittings of the court had already been set; that Marc’s counsel could not otherwise appear until January or April of the following year, some 6 and 9 months away; and, the fact that Marc had shown a complete lack of diligence in finding counsel.
35These considerations were part of the larger context, namely, that the trial was anticipated to be largely fact-driven and relatively straightforward. In the circumstances, in my view, it cannot be said that the trial judge exercised his discretion improperly. Thus, I would dismiss this ground of appeal.
ADEQUACY OF ASSISTANCE
36The appellants submit that the trial judge failed to provide them with the requisite degree of assistance during the trial.
37Ultimately, the question of adequacy of assistance is a matter of determining whether the trial judge ensured that the self-represented accused received a fair trial and was provided with sufficient guidance so that the accused could fully bring out his or her defence. How much guidance is required is a question of fact dependant on the circumstances of each case. See R. v. Tran (2001), 2001 5555 (ON CA), 55 O.R. (3d) 161 (C.A.).
38This was a straightforward case that had been tried before with complete disclosure and which had resulted in modest sentences. There were 5 Crown witnesses, all of whom had testified at the prior trial and they gave essentially the same evidence on the retrial. The case was fact-driven and the main issue was credibility. Neither Marc nor Laurent had any language difficulties.
39The record of the first trial reveals that Marc had a good understanding of what the evidence and issues were and a well-developed theory of the case. Indeed, he was complimented on his conduct of the first trial by the trial judge. Marc did not complain at his first appeal that he was unable to represent himself. Indeed, his cross-examination of the principal Crown witness at the first trial occupied some 40 pages.
40At the second trial, Marc demonstrated a sophisticated understanding of court proceedings and an ability to speak up for himself. He told the court when an exhibit had not been shown to him and asked for a recess when he did not feel well. He asked the trial judge for assistance with respect to obtaining transcripts he did not have. He attempted to enter an exhibit through the complainant and made submissions as to its relevance.
41Marc objected to the evidence regarding the cell phone use on the basis that it was hearsay, the basis upon which the Court of Appeal had found the evidence inadmissible at the first trial and ordered a retrial. The trial judge explained they were only looking at the order of calling witnesses, and that he should object when the witness is called. Marc then renewed his objection at the invitation of the court at the appropriate time. The trial judge explained that a cell phone bill was a business record and that since a witness was called to explain how it was made, this was unlike the first trial. The trial judge examined the witness briefly about how information gets to an electronic database from which a phone bill is automatically produced. When invited to cross‑examine the witness, Marc demonstrated his appreciation of the possible subtleties of procedure and asked:
I do need Your Honour’s guidance. If I do cross‑examine this witness may I still object to the hearsay evidence being admitted?
The trial judge replied:
You made your objection and your objection stands. If I admit a piece of evidence over your objection, you’re not giving away anything by cross‑examining. Your position stands and if you were to appeal and raise this on appeal, the fact that you ask questions of this witness won’t in any way undermine the validity of your appeal.
Marc then cross‑examined the witness and elicited evidence establishing that the use of a cell phone might not necessarily be by the individual or company being billed.
42The trial judge explained the motions, their purposes and their consequences. He assisted by asking witnesses questions. In questioning Nicol Becker, one of Marc’s alibi witnesses, the trial judge appropriately clarified her evidence with regard to when it was that she first spoke to Marc about his whereabouts on the night of the offences. While Marc objects to the trial judge’s questioning, that questioning elicited evidence that was favourable to him, namely, that there had been a conversation about his whereabouts shortly after his arrest. At the same time, however, Ms. Becker’s evidence contradicted Marc’s evidence, and the evidence of Avi Azuelos, another one of Marc’s alibi witnesses.
43The trial judge explained the appellants’ right to testify on two occasions and told Marc that he would have to testify to put his version of the facts on the record.
44In my view, the trial judge discharged his duty to ensure the fairness of the trial proceedings by providing adequate assistance to the accused. And, the appellants’ opportunity to make full answer and defence was not impaired. I would dismiss this ground of appeal.
TIMING OF THE RULING ON THE CROWN’S K.G.B. MOTION
45The appellants submit that the trial judge erred in ruling on the Crown’s K.G.B. motion to admit Hayre’s evidence from the first trial, at the end of the Crown’s case, after he heard the evidence of Hadida. They contend that they were prejudiced by the timing of the ruling because they were not afforded an opportunity to cross-examine Hayre.
46While it made some sense to postpone the decision on whether Hayre’s evidence met the necessity prong of the admissibility of hearsay test until after hearing the evidence of the other co-perpetrator, Hadida, in my view, it would have been preferable had the trial judge not delayed his ruling and if he had asked Marc and Laurent if they wished to cross-examine Hayre once he made the ruling. However, given that the trial judge found Hayre’s evidence not credible, and chose not to rely on it, and as the appellants were given the opportunity to cross-examine Hayre at the end of the Crown’s examination of the witness “at large”, the appellants suffered no prejudice. Accordingly, I would not give effect to this ground of appeal.
ADMISSION OF PREJUDICIAL EVIDENCE
47The appellants submit that the trial judge should not have admitted certain evidence relating to bad character as it was not explicitly relevant to the charges against Marc and Laurent and was prejudicial to their defence.
48In my opinion, this evidence was admissible. It was relevant to the Crown’s position that Marc’s club was not doing well financially, it spoke to the motive behind the events that occurred on October 3, 1996, and was an essential part of the narrative.
REJECTION OF THE ALIBI EVIDENCE
49The appellants submit that the trial judge erred in rejecting the alibi evidence. They submit that the Crown had sufficient time to investigate the witnesses and the fact that the witnesses were friends of Marc was not a basis on which to reject their evidence.
50The alibi was not raised until the eve of the first trial, more than 2 ½ years after the offence. In his reasons, the trial judge noted that while there had been an opportunity to investigate the alibi between the two trials, this opportunity was not meaningful. He found that, “As a direct result of the failure to disclose, the Crown had no cause to know that there was reason to investigate the alibi until the Court of Appeal ordered a new trial…nearly five years after the alleged offence.” He also found that the witnesses were not credible, noting they lacked impartiality due to being Marc’s friends.
51It was open to the trial judge to reject the alibi evidence, as he did, on the basis that the witnesses were not credible. In making that assessment, he was entitled to consider the fact that they were not impartial. His findings of credibility are entitled to great deference. I see nothing in this ground of appeal.
ADMISSIBILITY OF HAYRE’S PRIOR TESTIMONY
52The appellants submit that the trial judge erred in admitting Hayre’s testimony from the first trial, for the truth of its contents, at his second trial. They contend that the evidence was not sufficiently reliable to warrant admission.
53The trial judge did not rely on Hayre’s testimony. He said, “I would place absolutely no reliance on the evidence of Hayre or Hadida. They are both liars. It is impossible to discern what is truthful in their evidence and what is not.” Thus, even assuming that the evidence was wrongly admitted, the error did not occasion any substantial wrong. I would, therefore, not give effect to this ground of appeal.
REFUSAL TO POSTPONE SENTENCING
54Marc submits that the trial judge erred in refusing to grant his request for an adjournment before sentencing to allow him the opportunity to consult with counsel. He submits that given the seriousness of the offences of which he had been convicted, and the fact that the Crown was seeking a penitentiary term, the trial judge’s refusal to grant the adjournment was not in accordance with the interests of fairness.
55Marc offered no explanation as to why he needed extra time to prepare for a sentencing hearing that he had been through before. The sentencing judge retains the discretion to control the sentencing process. In the circumstances, I see no error in the sentencing judge’s exercise of discretion to refuse an adjournment.
DISPOSITION
56Accordingly, I would dismiss the appeal.
“E. E. Gillese J.A.”
“I agree K. M. Weiler J.A.”
SIMMONS J.A. (dissenting in part):
57I have had the benefit of reading the reasons for judgment of my colleague Gillese J.A. While I agree with her reasons in connection with most of the issues, in my view, the trial judge erred in failing to grant an adjournment to Marc Hazout.
58In addition to the facts noted by my colleague, I consider that there are three additional matters that are relevant to Marc’s adjournment request.
59First, although this court ordered a new trial in this matter on March 12, 2001, Marc was not notified of the Crown’s intention to seek a new trial until July 24, 2001. This involved a delay on the part of the Crown of almost 4 ½ months. Further, Marc’s first appearance in Superior Court was not until August 30, 2001, an additional delay of a little over one month. While I do not suggest that these delays are unreasonable, I point them out to illustrate that, at least in the initial stages of the retrial, the Crown did not proceed expeditiously. In my view, that is a factor that the trial judge was obliged to consider in assessing the reasonableness of any delays occasioned by Marc.
60Second, immediately following his ruling refusing Marc’s June 17, 2002 adjournment request, the trial judge acknowledged, during a further exchange with Mr. Strezos, that as of that date, Marc had in fact retained counsel for the retrial:
Mr. Strezos: …To be very clear, Mr. Bloomenfeld is retained for trial purposes, assuming, of course, the trial is on a date that is suitable to his schedule.
The Court: I guess there’s something I did say that might have led someone to think I didn’t understand that and perhaps I misspoke myself slightly. I appreciate you bringing that to my attention on his behalf. It doesn’t, in my mind, change what I was saying…So he’s assured that I understood it correctly.
61Third, in addition to his comments that were referred to by my colleague, in refusing Marc’s adjournment request, the trial judge said the following:
…if he had come before this court today and advised me that he had found counsel who is willing to take the case and could try the case in October, for example, I would have been very loathe to force the matter on today. But coming before this court now and telling the court in effect that he will have counsel next year to try the case simply to me is unacceptable.
62In my view, by refusing to grant an adjournment to Marc, the trial judge overemphasized the delay that had occurred between the date of the offences and the date set for the retrial and underemphasized the important fact that Marc had already served the sentence imposed at the original trial as well as the challenges faced by an accused on a private retainer in retaining counsel following a successful appeal.
63Most significantly however, the trial judge overemphasized Marc’s delay in obtaining counsel and failed to attach sufficient importance to the fact that, as of June 17, 2002 (the trial date), Marc had retained counsel who was prepared to proceed with the retrial in mid-August 2002.
64While I accept that it may have been within the discretion of the trial judge to hold that a delay that was likely to extend into at least April of 2003 was unreasonable, in my view, the trial judge erred by failing to afford Marc one final opportunity to retain counsel who would be available within a reasonable time frame that fit within the court’s schedule.
65It is important to bear in mind that apart from the 2003 dates that he had available, Mr. Bloomenfeld was available to proceed with the retrial in August 2002 and that it was the court that could not accommodate the August 2002 dates. Although the trial judge referred to the offer to proceed in August as unrealistic, the time frame between the June 17, 2002 trial date and the August dates on which Mr. Bloomenfeld was available to proceed was about the same as the time period between the April 8, 2002 set date hearing and the June 17, 2002 retrial date.
66In these circumstances, although August 2002 trial dates may have been unrealistic for the court, I see nothing unreasonable in Marc’s conduct in retaining counsel who was available to proceed in August 2002. In any event, the trial judge expressly acknowledged that Marc’s conduct in retaining Mr. Bloomenfeld was not a ploy to delay the proceedings.
67Further, I take the trial judge’s statement that he would have been loathe to force the matter on had Marc retained counsel who was available to proceed in October as an acknowledgment that some additional period of delay was not unreasonable. Although the trial judge expressed this view in the context of what he would have done had Marc attended on the actual trial date with counsel who was available in October, the trial judge’s comments demonstrate that the interests of justice would not have been compromised by some additional period of delay.
68Finally, although I agree that the trial was expected to be a relatively straight-forward, fact driven case, the Crown’s decision to retry the case when both accused had already served their original sentences was an indicator that, in the event of a conviction, Marc would be faced with significant additional jeopardy. In my view, this was a significant factor weighing in favour of granting a further adjournment.
69In all of the circumstances, given that Marc had finally retained counsel and that his counsel was available to proceed within approximately two months, and given that some period of a additional delay to accommodate counsel’s schedule was not unreasonable, I conclude that it was incumbent on the trial judge to afford Marc a final adjournment to attempt to retain counsel who would be available on a date that was available to the court.
70While I acknowledge that Marc did not specifically request this form of alternative relief, in my view, that is not surprising. Marc had retained counsel who was available to proceed in August. Moreover, Marc was not in a position to predict what, if any, further period of delay the trial judge would consider reasonable if the trial judge rejected his request to adjourn the case to permit Mr. Bloomenfeld to represent him.
71In my view, the failure to grant an adjournment in these circumstances creates an appearance of unfairness and requires that there be an order for a new trial: see R. v. McCallen (1999), 1999 3685 (ON CA), 131 C.C.C. (3d) 518 (Ont. C.A.). Accordingly, I would allow Marc’s appeal, set aside his convictions and order a new trial. For the reasons given by Gillese J.A., I would dismiss Laurent’s appeal.
RELEASED: August 26, 2005 (“KWM”)
“Janet Simmons J.A.”
