COURT OF APPEAL FOR ONTARIO

DATE: 2004-05-13

DOCKET: C39905

RE: HER MAJESTY THE QUEEN (Respondent) –and– DARRYL GORDON HEYWOOD (Appellant)

BEFORE: ABELLA, SIMMONS and LANG JJ.A.

COUNSEL: Gregory Lafontaine for the appellant Lorna Bolton for the respondent

HEARD AND ENDORSED: May 6, 2004

On appeal from the conviction entered by Justice A. Whitten of the Superior Court of Justice, sitting without a jury, on January 27, 2003 and from the sentence imposed by Whitten J. dated January 27, 2003.

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

[1] On consent, the conviction is set aside, and a new trial is ordered on Count #2.

[2] In the circumstances, and based on the fresh evidence, we see no basis for reincarcerating the appellant and would, accordingly, allow the sentence appeal on all remaining counts and vary the sentences to time served.