DATE: 2004-10-13
DOCKET: C39149
COURT OF APPEAL FOR ONTARIO
ROSENBERG, FELDMAN and SHARPE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN (Appellant)
- and -
WILLIAM GREGORY HENDERSON (Respondent)
Counsel: Ivan S. Bloom, Q.C., for the appellant Constance Baran-Gerez, for the respondent
Heard: June 29, 2004
On appeal from a mistrial declared by Justice Peter B. Hambly of the Superior Court of Justice dated November 6, 2002.
FELDMAN J.A.:
[1] The date set for sentencing, following the respondent’s conviction by a jury on 249 counts of fraudulently obtaining and attempting to obtain G.S.T. refunds, the jury’s verdicts having been recorded, the trial judge declared a mistrial. He found that the Crown’s failure to preserve certain documents amounted to an abuse of process and a breach of s. 7 of the Charter.
[2] The Crown appeals from that order, pursuant to s. 676(1)(b) of the Criminal Code, on the basis that the trial judge failed to exercise his jurisdiction on the indictment, which was to sentence the respondent following the jury’s verdict.
[3] For the reasons that follow, I would allow the appeal.
FACTS
[4] The respondent worked as an auditor at Revenue Canada from 1990 to July 1996. One of his areas of responsibility was G.S.T. His father, Henderson Sr., pleaded guilty to participation in a scheme with the respondent to defraud Revenue Canada, which involved using person’s names without their knowledge to set up false accounts, then claiming and collecting refunds in those accounts. The respondent supplied the information and set up the accounts for the fictitious claimants within Revenue Canada, then his father set up bank accounts for the claimants, made the G.S.T. refund claims, collected the money from the bank accounts and split the proceeds with the respondent. The respondent denied participation in the scheme and claimed that his father and another person used his password and computer access at Revenue Canada to perpetrate the fraud. Revenue Canada paid out over $1.5 million, and over $1 million remained unrecovered at the time of the trial.
[5] Besides the evidence of the respondent’s father, Julie McCulloch, a co-worker and close friend of the respondent, testified that the appellant approached her suggesting she participate with him in a scheme to defraud Revenue, later saying that he was kidding. Then after he was arrested, he confessed his involvement in this scheme to her. The respondent denied these conversations.
[6] The other main evidence against the respondent was the audit trail conducted by Revenue of the respondent’s access to Revenue Canada records using his computer and password, which access was used to create or obtain information required to claim and receive the refunds. The respondent changed his password three times during the relevant period. He testified that someone could have obtained his password either by looking over his shoulder when he was entering it or by looking in his daytimer where he had written it down. Other documents and computer discs relating to the scheme were found in his basement when the police executed a search warrant at his home.
[7] The respondent denied any participation in the scheme. First, he explained the use of his password by claiming that someone within Revenue must have worked with his father, using the respondent’s password to access and create Revenue data. Through disclosure, the respondent obtained an expense voucher that showed that he was out of the office at an audit on one occasion when his password was used to access information in respect of the fraudulent claims. He testified that he did not have the ability to access the Revenue computer from remote locations.
[8] A second circumstance that removed the respondent from direct responsibility for part of the execution of the scheme was that in November 1997, long after the respondent left Revenue in July 1996, the threshold for auditing the G.S.T. account of one of the fictitious claimants was raised. Refund claims up to the new limit were then made by the respondent’s father. The appellant was unable to locate the template document that was submitted to the supervisor for that threshold increase and was unable to say who had asked for the increase in the threshold level.
[9] The respondent brought a pre-trial motion for a stay of proceedings based on the Crown’s failure to produce the balance of the respondent’s travel expense reports. The motion was returnable on the original trial date, February 23, 2001, but was adjourned and rescheduled for November 5, 2001. On that date the defence brought another application challenging the search warrant that was executed at the respondent’s home, which application was dismissed by the trial judge. Following the dismissal of the application to exclude the evidence seized in the search of the respondent’s home, counsel for the respondent advised the court that he was not proceeding with the stay application and advised the court that the Crown had fulfilled his disclosure request.
[10] Following the pre-trial motions but before trial, counsel for the respondent requested production of all of the respondent’s employment records from Revenue Canada. These would have included his attendance records, enabling the defence to identify other days, if any, when the appellant’s password was used but he was not present. However, the appellant was unable to find any of the records, explaining that they must have been destroyed in the normal course and in accordance with Revenue’s normal records destruction schedule. Importantly, the defence made no motion for a remedy for the Crown’s failure to provide disclosure of the employment records either before the trial or at any time before the verdict was given by the jury and jury members were discharged. Also, the respondent acknowledged in his testimony that in the ordinary course he had received or retained copies of all the documents he was seeking from the Crown, and that he had saved them all and kept them in his basement, but said that he was unable to find them.
[11] In summary, it was always part of the defence that there was a third party at Revenue Canada involved in the fraudulent scheme with the respondent’s father. Furthermore, the disclosure requests were clearly directed at demonstrating the respondent’s whereabouts on the relevant dates. However, the Crown did not focus on the possible participation of another person in the fraud until the defence began to highlight the gaps in the evidence regarding the respondent’s whereabouts when some of the fraudulent activity occurred. In his closing address, the Crown suggested to the jury that there was not only the respondent and his father, but possibly another accomplice within Revenue Canada. The trial judge referred to the Crown’s theory in his charge. Following the jury’s verdict convicting the respondent on all counts, the Crown began a further investigation to try to identify the other party involved.
[12] The trial judge registered the jury’s verdicts and remanded the respondent in custody pending sentencing. On the date set for sentencing, the respondent brought an application for a stay of proceedings on the basis of a breach of s. 7 of the Charter and abuse of process, because the Crown had failed to preserve and disclose the respondent’s employment records, which had been requested prior to trial.
[13] On the application, the trial judge heard evidence from the Crown as to why it was unable to produce the records. The evidence essentially was that the records were subject to destruction after they were retained for two years from the end of a fiscal period. However, the Crown was unable to provide the dates of destruction of the records or guarantee that they had actually been destroyed. After the respondent became a suspect in the fraud in September 1998, the respondent’s personnel file was reviewed and provided to him. It contained no time sheets. When the Crown was asked for disclosure of the records regarding the increase in the auditing threshold that occurred in November 1997, which was after the respondent left the employ of Revenue, an investigation was conducted but the records were not found.
[14] After reviewing some case law, the trial judge concluded that he had jurisdiction to consider a stay or a mistrial after a jury verdict. He then went on to consider the application as if it had been brought at the opening of trial or at the conclusion of the evidence in accordance with this court’s decision in R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.).
[15] The trial judge first found that the Crown had been unacceptably negligent in failing to ensure that the respondent’s employment records were retained for disclosure purposes once the respondent was under investigation; the records were potentially relevant, particularly for the defence. He also found that the Crown conduct amounted to an abuse of process.
[16] He then turned to the question of remedy. He first considered whether the conduct of the trial had already afforded the respondent the remedy he was entitled to. He reviewed what had been done at the trial to allow the respondent to raise and rely on the missing documents as part of the defence before the jury.
[17] First, through cross-examination of Crown witnesses, through the evidence in-chief of the respondent and in his address to the jury, counsel for the respondent made the point that the travel expense account showed the respondent was on an audit in Durham on June 26 and 27, 1995. Therefore, because he was not in the office, he could not have accessed Revenue’s mainframe computer on those days. Second, the Crown witnesses were cross-examined about their failure to take any steps to preserve the respondent’s time records, suggesting that if there were records that showed that the respondent was out of the office on other relevant dates, he also could not have accessed the Revenue computer on those dates.
[18] Although the Crown attacked the travel expense account record as self serving and possibly manipulated by the respondent, the trial judge was satisfied that the jury had accepted the document as valid. The trial judge charged the jury on the two possible effects of this evidence, and his charge would have applied equally had more of such evidence come forth. He told the jury:
It seems to me that there is one of two possible inferences to draw from this evidence. Either someone had stolen Henderson Jr.’s password, was accessing the mainframe with his user ID and password and was providing information to Henderson Sr. unknown to Henderson Jr. or someone else inside Revenue was working with Henderson Jr. and perhaps Henderson Sr. to implement the plan to obtain false G.S.T. refunds.
The trial judge concluded that the jury must have accepted the second inference, but reasoned that had there been more of this evidence, it may have raised a reasonable doubt. On the other hand, had the missing records shown that the respondent’s absence for the audit in Durham, when his user I.D. was used to access Revenue’s computer on one of the fraudulent accounts, was an isolated incident, that would have been evidence that strongly supported the Crown’s case.
[19] The trial judge concluded that because Bero had not been cited to him before his charge to the jury, the respondent only received half the remedy prescribed in that case: the defence was allowed to explore before the jury the question of the missing evidence and what it might have shown, but the trial judge did not instruct the jury that the Crown was responsible for the loss of that evidence.
[20] The trial judge was also concerned that it was only after the trial that the Crown began to investigate the possible third party at Revenue Canada who may have been involved either with the respondent, or only with the respondent’s father in the fraud.
[21] The trial judge was not prepared to sentence the respondent to a lengthy penitentiary term when there might have been evidence in the hands of the Crown that could have exonerated him. The trial judge concluded that the respondent had not had the full trial remedy provided for in Bero, but that this was not one of the rarest of cases where the proper remedy was a stay. Therefore he declared a mistrial where the whole issue of the lost evidence could be explored again on another stay motion at the opening of trial.
ISSUES
(1) Does the Crown have a right of appeal from a trial judge’s declaration of a mistrial?
(2) If the Crown has the right to appeal, did the trial judge have the jurisdiction to declare a mistrial after the jury verdict had been delivered and recorded?
(3) If the trial judge had the jurisdiction to declare a mistrial, did he err in law in concluding that it was appropriate to declare a mistrial in this case?
Issue 1: The Crown’s Right of Appeal
[22] The respondent’s first position is that the Crown’s limited statutory right of appeal does not allow the Crown to appeal an order granting a mistrial. The governing section of the Criminal Code, R.S.C. 1985, c. C-46, is s. 676 which provides:
s. 676. (1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal
(a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;
(b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails to exercise jurisdiction on an indictment;
(c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment; or
(d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one fixed by law. [Emphasis added.]
[23] The Crown relies on s. 676(1)(b) and s. 720. Section 720 provides:
s. 720 A court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed.
[24] The Crown states that the trial judge failed to exercise his jurisdiction on the indictment by not proceeding to sentence the respondent in accordance with s. 720 of the Code, but instead ordering a mistrial.
[25] The respondent relies on the case of R. v. Currough Inc. (1995), 27 W.C.B. (2d) 2 (N.S.C.A.) (motion to quash application for leave to appeal granted, 1995 140 (SCC), [1995] 1 S.C.R. 900), for the proposition that the Crown has no right to appeal from a declaration of a mistrial. In Currough, the trial judge dismissed the Crown’s motion for a mistrial which was brought during the trial. The Crown sought to appeal that ruling to the Court of Appeal and to the Supreme Court of Canada. Both courts quashed the appeal for lack of jurisdiction. However, in that case, the order appealed from was an interlocutory ruling by the trial judge; following the refusal to declare a mistrial, the trial judge could proceed with the trial in accordance with his jurisdiction under the indictment. The ruling was not subject to appeal by either side. First, s. 674 of the Code limits the rights of appeal in indictable proceedings to those authorized by Parts XXI and XXVI of the Code. Second, the Crown’s request for relief did not fall within any of the categories of Crown appeals in s. 676.
[26] However, in this case, the order appealed from is not interlocutory, but is a final order which concluded the trial. The trial judge did not carry out his statutory jurisdiction under s. 720, but instead, ordered a mistrial following the jury’s verdict.
[27] Notwithstanding s. 720, however, the court does have a narrow jurisdiction to order a mistrial after a jury verdict. As discussed below, this can occur where the jury has rendered or communicated an unintended verdict and the trial judge is not able to correct the verdict because the jury has dispersed, causing a reasonable apprehension of bias in that jury. In those narrow circumstances, the trial judge has the authority to order a mistrial in order to avoid a miscarriage of justice.
[28] The substantive issue on this appeal is whether the circumstances of this case gave the trial judge the jurisdiction to declare a mistrial. If he had jurisdiction, then the Crown has no authority to appeal the order. However, if he did not have jurisdiction, then the Crown has the right of appeal under s. 676(1)(b) on the basis of the trial judge’s failure to exercise his jurisdiction on the indictment. In that case, on the basis of the trial judge’s failure to exercise jurisdiction on an indictment, the appeal must be allowed, and the matter sent back to the trial judge for sentencing. (See R. v. Taylor (1995), 1995 4059 (SK CA), 104 C.C.C. (3d) 346 at 350, 352 (Sask.C.A.)).
Issue 2: The trial judge’s authority to declare a mistrial following the recording of the jury’s verdict
[29] A trial judge’s jurisdiction to alter a jury’s verdict, order a stay or declare a mistrial after a jury verdict is extremely limited. The normal rule is that following the delivery and recording of a verdict by the jury, the trial judge is functus in respect of that verdict, which cannot be altered, except on appeal. The rule is somewhat different in a judge-alone trial. In that case, where the trial judge has entered a verdict of acquittal, the verdict is final and cannot be subsequently altered by the trial judge. However, where a trial judge convicts an accused but has not yet sentenced him or her, the trial judge is not functus in respect of that charge, and can, in exceptional circumstances, vacate the adjudication of guilt before sentencing: R. v. Lessard (1976), 1976 1417 (ON CA), 30 C.C.C. (2d) 70 at 73-75. (Ont. C.A.); R. v. Benns, [2004] O.J. No. 182 (C.A.).
[30] The sacrosanct nature of the jury verdict is subject to some narrow exceptions. One is where the jury does not render the verdict it intended. In that case (a) where the mistake becomes known before the jury is discharged, the judge retains jurisdiction to record the verdict the jury did intend; (b) where the mistake becomes known after the jury is discharged, the judge may recall the jury to determine whether there is a reasonable apprehension of bias because of the dispersal of the jury. If there is no reasonable apprehension of bias, the judge should correct the erroneous verdict; if there is a reasonable apprehension of bias, the judge cannot record the intended verdict, but in order to avoid a miscarriage of justice, the judge may vacate the erroneous verdict and order a mistrial, or maintain the originally communicated verdict. However, in no event may the judge make any changes to the jury verdict that require further deliberations by the jury: Burke v. The Queen (2002), 2002 SCC 55, 164 C.C.C. (3d) 385 (S.C.C.).
[31] The second exception is where the accused wants to raise the defence of entrapment. Because entrapment is a defence that does not vitiate the culpability of the accused but involves unlawful conduct in the procurement of the offence by the state, the defence is determined by the trial judge only after the jury has found the accused guilty. That verdict is not impugned by the stay application. Procedurally, the trial judge does not record the jury’s verdict of guilt, but conducts the stay application, and if the accused satisfies the judge on a balance of probabilities that he or she was entrapped, the judge may order a stay on the basis of abuse of process: R. v. Mack (1988), 1988 24 (SCC), 44 C.C.C. (3d) 513 (S.C.C.).
[32] The limits of the rule developed in Mack were clarified in this court’s decision in R. v. Gostick (1991), 1991 11749 (ON CA), 62 C.C.C. (3d) 276. In that case, after the jury convicted the accused of two counts of sexual assault, the trial judge registered the verdicts and remanded the accused for sentencing. During the trial the jurors had complained about the heat in the courtroom and had asked the judge whether they could complain to the Attorney General. Some did. Before discharging the jury, the trial judge canvassed them regarding their concerns about the “deplorable conditions” and read out one of the juror’s letters. Before the sentencing proceedings, the judge received and provided to counsel a report from the Ministry of Labour regarding the results of testing that found unacceptable air quality in the courtroom. Based on that report and the jurors’ letters, the defence moved before the trial judge for a stay, claiming that the conditions in the court room constituted an abuse of process and a denial of the accused’s Charter right to a jury trial.
[33] The trial judge granted the stay and the Crown appealed. The Court of Appeal held that the entrapment procedure did not apply to this case and that the trial judge had no jurisdiction, following recording of the jury verdict, to grant a stay. Robins J.A. stated at 284:
In my opinion, the logic underlying Mack is not applicable to cases involving an abuse of process of the nature alleged here. There is no reason for an issue of this nature to await the jury’s determination of the accused’s guilt or innocence. If it is alleged that conditions in the court-room are so oppressive as to prevent the jury from properly performing its function and thereby denying the respondent a fair trial, the matter should be raised and dealt with by the judge during the course of the trial. If such circumstances exist, the jury ought not to be charged and called on to assess the respondent’s guilt or innocence. If, however, the case goes to the jury and the allegation is not made until after the verdict has been recorded and the jury discharged, the matter then becomes one to be dealt with by way of appeal and not by the trial judge.
By that stage, applying the approach taken in Head [(1986 8 (SCC)), 30 C.C.C. (3d) 481 (S.C.C.)] to the obviously different circumstances of the present case, the trial was over; the jury, as trier of fact, had found the respondent guilty, the verdict had been registered and the jury had been discharged. Subject to an appeal, the jury’s finding of guilt was final. Had the jury acquitted the respondent, that finding would, of course, have likewise been final. All that remained after the conviction was for the judge to sentence the accused. He was not empowered at that juncture to reopen the trial proceedings and, by staying the charges, effectively quash the jury’s verdict. The judge’s mandate was to sentence the respondent, and he erred in not doing so. Any remedy for the complaints which gave rise to the stay (and I am not to be taken as agreeing that a stay is, in any event, the proper remedy) must be sought by way of appeal.
See also R. v. Gumbly (1996), 1996 NSCA 213, 112 C.C.C. (3d) 61 (N.S.C.A.).
[34] The respondent argues that the categories of cases where an abuse of process argument can be raised on a stay application following a jury verdict of guilt are not limited to entrapment, and that the procedure in Mack can apply more broadly. He cites cases from lower courts where that has been done: R. v. Lalich, [1989] B.C.J. No. 2386 (Co. Ct.); R. v. Robinson (1999), 1999 ABCA 367, 142 C.C.C. (3d) 303 (the Alberta Court of Appeal overruled the trial court on the merits without commenting on the procedure employed by the trial judge); R. v. Rogers, [1995] O.J. No. 3114 (Gen. Div.); R. v. White, [1997] A.J. No. 255 (Q.B.); R. v. G.G.M., 2003 NSSC 258, [2003] N.S.J. No. 492 (N.S.S.C.).
[35] We do not need to decide in this case whether there are any circumstances when the stay procedure in Mack might be extended. The issue here is whether, as a remedy for a Charter breach or for an abuse of process, the trial judge had jurisdiction to declare a mistrial following the recording of a jury’s verdict of guilt for pre-trial non-disclosure by the Crown which was known to the defence. In my view, the decisions of the Supreme Court of Canada in Burke and of this court in Gostick make it clear that he did not.
[36] In Burke, the court acknowledged at para. 74 that there are broad common law powers to declare a mistrial, the test being “whether there is a ‘real danger’ of prejudice to the accused or danger of a miscarriage of justice.” However, in canvassing the circumstances when a mistrial is the appropriate remedy, all of the examples cited by the court were cases where the mistrial motion was brought either during the trial, during jury deliberations, or in one case, after the jury had found the accused guilty but was deadlocked on the issue of mental disorder, and where the guilty verdict had not yet been recorded.
[37] The court only allowed the mistrial remedy to be applied after the jury had been discharged, in the limited circumstances where the verdict had been improperly recorded but where, after an inquiry by the trial judge, it appeared that there was a reasonable apprehension of bias because of the dispersal of the jury. However, the court emphasized that the post-discharge inquiry itself can only take place where the issue is jury error with respect to the intended verdict, not where issues in the conduct of the trial and the evidence presented may have affected that verdict. It is clear that the court was not suggesting that the trial judge’s “exceptional jurisdiction” to recall the jury and power to declare a mistrial extended post discharge of the jury, except in the very limited circumstances described by the court.
[38] Consequently, the Burke case does not affect the correctness of the reasoning in Gostick. In Gostick it was argued that the rule in Head that a registered jury verdict cannot be altered by a trial judge – a rule that was discussed and somewhat modified in Burke – did not apply to an abuse of process motion, but rather the court should operate by analogy to Mack. The court rejected that analogy and held that where there is an alleged abuse of process that occurs during the trial, the motion for a remedy must be brought before the jury’s verdict is registered. Otherwise, the matter can only be addressed on an appeal.
[39] Furthermore, when the alleged abuse of process or breach of s. 7 of the Charter is an alleged failure by the Crown to carry out its disclosure obligations, the proper procedure for the court to address that concern is found in the Supreme Court’s decision in R. v. La (1997), 1997 309 (SCC), 116 C.C.C. (3d) 97 and in this court’s decision in R. v. Bero. In Bero, Doherty J.A. set out the procedure to be followed on a motion for a stay based on the Crown’s failure to produce lost or destroyed potentially relevant evidence. The procedure is for the accused to move, normally at the opening of the trial, for a stay based on the Crown’s failure. Unless the need for a stay is clear, the trial judge is not to rule on the motion at the opening of trial, but rather must reserve the decision until all of the evidence has been heard and when the court is in a position to assess the degree of prejudice caused to the accused. This is in accordance with the Supreme Court’s earlier decision in La at paras. 27 and 28.
[40] Therefore, the ruling on the stay motion is to be made before the case goes to the jury. In that way, any accommodations in the trial process and in the admission of evidence, and appropriate informational instructions to the jury about the Crown’s responsibility to preserve and produce all relevant evidence in its possession may be implemented during the trial, thereby providing a remedy short of a stay. It avoids any potential need for a mistrial and leaves as the sole issue whether a stay is the only remedy that will cure the breach, subject, of course, to an appeal. This procedure is consistent with the jurisdictional restrictions on a trial judge once the jury’s verdict has been registered.
[41] In this case, one of the respondent’s concerns about trial fairness was that the Crown shifted its position from the opening before the jury to the closing. In the opening, Crown counsel said that there were two people involved, the respondent and his father, while in the closing, she said that there may have been another unknown person at Revenue Canada involved. The propriety of that change of position and whether it caused irreparable prejudice to the respondent, is a factor that the trial judge would have considered on the stay motion, had it been brought at the close of the evidence.
Issue 3: Application to this case
[42] After the jury had found the respondent guilty on all counts, after the verdict had been registered and after the jury had been discharged, it was an error for the trial judge to conclude that he had the jurisdiction to entertain a motion for a stay as a remedy for abuse of process or a breach of s. 7 of the Charter, based on the Crown’s failure to preserve and disclose the respondent’s employment records.
[43] The history of this case demonstrates why there are limitations on a trial judge’s jurisdiction to entertain such a motion. The Crown’s failure to retain and disclose the records had been a live issue before the commencement of the trial. Those documents were requested by the defence after the completion of all the pre-trial motions and after counsel for the respondent withdrew his motion for a stay, telling the court he was satisfied with the Crown’s disclosure. The respondent also had copies of all of these documents at one time.
[44] The respondent used the Crown’s failure to disclose as a significant part of his defence before the jury both in his own testimony, in cross-examination of Crown witnesses and in counsel’s address to the jury. Counsel used the travel voucher that showed that the respondent was away on one of the relevant dates as an indication that the missing documents may have shown other dates as well. He specifically brought out in cross-examination that it was the Crown’s obligation to produce the documents that it had in its possession. The trial judge also addressed the issue in his charge to the jury.
[45] It is not clear why the issue was not made the subject of a motion by the defence either before or during the trial. It may have been the Crown’s decision to conduct a further investigation looking for another accomplice after the jury’s verdict that led the defence to bring the motion at that time.
[46] However, what is clear is that such motions must be brought at a point when the trial judge is in a position to deal with the matter with the jury, and if a stay is not appropriate, to give a remedy during the trial. Counsel cannot save such motions to be brought only if the accused is convicted. Once the jury has delivered its verdict, matters that involve the conduct of the trial and that could have affected the jury’s verdict can only be raised on appeal.
CONCLUSION
[47] The trial judge had no jurisdiction to declare a mistrial in this case. He was obliged to sentence the respondent in accordance with the verdicts of the jury. The Crown was therefore entitled to bring this appeal under s. 676(1)(b) of the Code. The appeal is allowed and the case is referred back to the trial judge for sentencing. Nothing decided in this judgment affects any right of appeal that the respondent may have.
Signed: “K. Feldman J.A.”
“I agree Marc Rosenberg J.A.”
“I agree Robert J. Sharpe J.A.”
RELEASED: “MR” October 13, 2004