COURT OF APPEAL FOR ONTARIO
Before: Simmons, Tulloch and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
David Benoit
Respondent
Counsel:
Avene Derwa, for the appellant
David Benoit, in person
Heard and released orally: May 16, 2014
On appeal from the acquittal entered on July 23, 2103 by Justice J. Colvin of the Ontario Court of Justice.
ENDORSEMENT
1The respondent was charged with robbery. At trial the Crown requested that the respondent be convicted of the lesser included offence of assault. We agree that the trial judge erred in law when he concluded that because the information did not particularize the manner in which the robbery was alleged to have been committed, the respondent could not be convicted of the lesser included offence of assault. See R. v. Simpson, 1981 3284 (ON CA), [1981] O.J. No. 23 (C.A.) and R. v. Luckett, 1980 185 (SCC), [1980] 1 S.C.R. 1140.
2On our reading of the trial judge's reasons, he did not make the factual findings necessary to support a finding of guilt for assault. A substituted conviction is not therefore available. To obtain an order for a new trial, “[w]hat the Crown must establish, with a reasonable degree of certainty, is that the verdict would not necessarily have been the same had the errors not been made”: R. v. J.M.H., 2009 ONCA 834, [2009] O.J. 4963 (C.A.). In the unique circumstances of this case, we are not satisfied that the Crown has met that burden.
3The appeal is dismissed.
“Janet Simmons J.A.”
“M. Tulloch J.A.”
“P. Lauwers J.A.”