DATE: 20010323

DOCKET: C31123

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent)

v. SAID MEMARZADEH (Appellant)

BEFORE: McMURTRY C.J.O., FINLAYSON and LABROSSE JJ.A.

COUNSEL: Wes Wilson, for the appellant

Alexander Hrybinsky, for the respondent

HEARD: March 20, 2001

On appeal from his conviction by Justice Maryka Omatsu on September 30, 1998

O R A L E N D O R S E M E N T

[1] The appellant was convicted on a charge of break, enter and theft. He was sentenced to a conditional sentence of thirty days, plus a probationary period of two years. He appeals his conviction.

[2] On June 29, 1997, the appellant was released from a police station on a promise to appear with respect to an unrelated matter.

[3] On the same day, some nine hours later, a complaint was made that numerous chattels were taken from a residence approximately a quarter of a block from the police station. While there was no evidence of a break-in, the appellant’s promise to appear was found inside the premises.

[4] The appellant spent eight years in an Iranian jail as a political prisoner. As a result of interrogations, he was required to undergo three surgical operations on his brain to control bleeding. He was on medication in relation to ongoing mental problems. He was involved with the Centre for Victims of Torture.

[5] The appellant testified that he had no recollection of having been at the police station, or of leaving the police station on that day. He assumed that he must have gone home after he was released.

[6] The trial judge held that the combination of opportunity together with the location of the promise to appear justified the conviction.

[7] In our view, the conviction is unsafe. Contrary to the trial judge’s finding, there was no evidence of a break-in. There is no evidence that the appellant entered the premises. There is no evidence as to the identity of the person who took the chattels. Moreover, no evidence was led as to whether other persons had access to the premises. In any event, the presence of the promise to appear did not establish that the appellant was the thief.

[8] On this record, the circumstantial case could not reasonably support the finding that the identity of the appellant as the person responsible was the only reasonable inference to be drawn.

[9] The appeal is allowed and the conviction is quashed.

(signed) “R. McMurtry C.J.O.”

(signed) “G. D. Finlayson J.A.”

(signed) “J. M. Labrosse J.A.”