COURT OF APPEAL FOR ONTARIO

DATE: 20041116

DOCKET: C41672

RE: HER MAJESTY THE QUEEN (Appellant) – and – MARTIN CARDINAL (Respondent)

BEFORE: CATZMAN, LASKIN and FELDMAN JJ.A.

COUNSEL: Milan Rupic for the appellant

David M. Paciocco for the respondent

HEARD & ENDORSED: November 12, 2004

On appeal from the Order of Justice Jean A. Forget of the Superior Court of Justice, sitting in the Summary Conviction Appeal Court, dated March 17, 2004.

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

[1] The trial judge based his decision both on the evidence of the complainant as well as on the videotape, but not on the videotape alone. Crown counsel acknowledged that the conviction could only be supported based on the video alone. However, the trial judge was not prepared to convict on the tape alone.

[2] We therefore agree with the summary conviction appeal judge that based on the reasons of the trial judge, there has been a miscarriage of justice.

[3] However, we do not agree that no judge properly instructed could conclude that there is no basis to convict the respondent. We therefore reject the conclusion that the verdict here was unreasonable and warrants an acquittal.

[4] We therefore uphold the conclusion of the summary conviction appeal judge that the proper result is an order for a new trial. In those circumstances the appeal regarding sentence is moot.