W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20040405

DOCKET: C37853

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – G. B. (Appellant)

BEFORE:

GOUDGE, MacPHERSON AND CRONK JJ.A.

COUNSEL:

Anthony Moustacalis

for the appellant

Eric Siebenmorgan

for the respondent

HEARD:

April 1, 2004

RELEASED ORALLY:

April 1, 2004

On appeal from the conviction imposed by Justice Nancy Mossip of the Superior Court of Justice dated January 18, 2002.

E N D O R S E M E N T

[1] On receipt of the jury’s request for a transcript of the evidence of the three main witnesses, the trial judge, unfortunately without fully discussing the matter with counsel, indicated that this request could not be met and the jury had to try to make their request specific. While the trial judge was entitled to attempt to get the jury to be specific, she was not entitled to foreclose further help to them.

[2] In our view, despite the context, the response given would inevitably have communicated to the jury that not only could the transcript not be provided, but that unless the jury could be specific as to the pieces of evidence they needed to be refreshed on, no help could be provided to them. This effectively foreclosed the option of refreshing their memory on all the evidence of the three witnesses by reading it back or providing a summary of it if the jury found it could not be specific.

[3] In light of R. v. Kiyoshk (1999), 1999 2782 (ON CA), 133 C.C.C. (3d) 478 (Ont. C.A.) that represents reversible error.

[4] The conviction must be set aside and a new trial ordered.

“S.T. Goudge J.A.”

_ “J.C. MacPherson J.A.”

_ “E.A. Cronk J.A.”