DATE: 20040130

DOCKET: C40151

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – MARVIN McINTOSH (Appellant)

BEFORE: ABELLA, GOUDGE and GILLESE JJ.A.

COUNSEL: Joseph Wilkinson for the appellant Surinder Aujla for the respondent

HEARD: January 26, 2004

RELEASED ORALLY: January 26, 2004

On appeal from the conviction of Justice N. Borkovich of the Superior court of Justice dated February 5, 2003 and the sentence imposed by Borkovich J. dated May 16, 2003.

E N D O R S E M E N T

[1] In our view, there were three errors which, together, rendered the trial unfair: 1) the videotape was excluded without the trial judge, who did not see it, having a proper basis for concluding it was not probative; 2) the charge on reasonable doubt does not comply with Lifchus in that the trial judge failed to mention the absence of evidence as a basis for reasonable doubt. In a circumstantial case such as this, that is an important omission; and 3) the admission of expert evidence that strayed into outlining the adverse social consequences of crack cocaine use for the City of Hamilton was prejudicial in the context of this case and required a limiting instruction.

[2] Accordingly, the appeal is allowed, the conviction is set aside and a new trial ordered.

Signed: "R.S. Abella J.A." "S.T. Goudge J.A." "E.E. Gillese J.A."