DATE: 20040116 DOCKET: C39069

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and - STEPHEN BENNS (Appellant)

BEFORE:

WEILER, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL:

Anil K. Kapoor For the appellant

Benita Wassenaar For the respondent

HEARD:

January 7, 2004

RELEASED ORALLY:

January 7, 2004

On appeal from conviction by Justice Edwin Minden of the Superior Court of Justice on April 18, 2002.

ENDORSEMENT

[1] The appellant was charged with two counts in an indictment as follows:

1. That he, on or about the 1st day of October 1999 at the City of Oshawa in the Province of Ontario, unlawfully did rob Chuck Buzzell of a sum of money, and did use a firearm in the course of that robbery contrary to the provisions of section 344 of the Criminal Code.

2. That he, on or about the lst day of October, 1999 at the City of Oshawa in the Province of Ontario, unlawfully did use an imitation firearm while committing the indictable offence of robbery contrary to the provisions of section 85(2)(a) [of the Criminal Code].

[2] The primary issue at trial was whether the appellant had, in fact, robbed Mr. Buzzell as alleged in Count 1. The trial judge gave thorough and, in our view, exemplary reasons for concluding that he had. Nonetheless, at the conclusion of his reasons for judgment, the trial judge acquitted the appellant on Count 1 and convicted him on Count 2.

[3] In acquitting the appellant on Count 1, it appears from the trial judge's reasons that he was of the view that absent proof that the firearm being used was an actual firearm as opposed to an imitation firearm, the charge must fail in its entirety. In other words, he considered proof of the use of a firearm to be an essential element of the offence of robbery.

[4] With respect, that was wrong. To the extent that the trial judge was certain that the appellant had committed robbery but uncertain as to whether he was using an actual firearm, he should have convicted the appellant of robbery simpliciter: see R. v. D.(A.), 2003 BCCA 106, 173 C.C.C. (3d) 177 at 185 (B.C.C.A.). Manifestly, that was what the trial judge wanted to do. Unfortunately however, he did not do so. When the mistake was brought to his attention at the sentence hearing in relation to Count 2, he changed his verdict to guilty of robbery on Count 1. Because he was required to reconsider his verdict, we cannot treat the error as a mere clerical error or accidental slip, nor can it be characterized as an irregularity: see R. v. Burke (2002), 2002 SCC 55, 164 C.C.C. (3d) 385 at pp. 406 and 407 (S.C.C.). It was clearly an oversight and it could have been corrected without difficulty on a Crown appeal had the trial judge let the verdict of acquittal stand.

[5] That however is not what occurred. At the sentence hearing in relation to Count 2, Crown counsel submitted, and the trial judge agreed, that he was not functus on Count 1, and that he had the authority to reverse the acquittal and substitute a verdict of robbery simpliciter.

[6] With respect, in the circumstances of this case, that approach was incorrect. In our view, having found the appellant not guilty on Count 1 (albeit on account of a mistake in law) the trial judge was functus on that count: see R. v. Lessard (1976), 30 C.C.C. (2d) 70 at pp. 74 and 75 (Ont.C.A.). He was not entitled to revisit it a month later on the sentence hearing relating to Count 2. In other words, the trial judge's jurisdiction on Count 1 was spent and it could not be revived on a sentence proceeding relating to a different offence.

[7] That, in turn, leads to the second error. Having acquitted the appellant on Count 1, the trial judge could not convict him on Count 2 since the conviction on that Count required that the appellant first be convicted of robbery: see R. v. Pringle (1989), 48 C.C.C. (3d) 449 at 455 and 456 (S.C.C.).

[8] Accordingly, the appellant's conviction on Count 2 must also be set aside unless, as the Crown submits, we can apply s. 686(1)(b)(iii) or (iv) to save it, as well as the robbery conviction.

[9] Commencing with section 686(1)(b)(iv), in our view, that provision does not apply here. The trial judge had no jurisdiction over Count 1 because he was functus. The loss of jurisdiction for that reason can hardly be described as a loss of jurisdiction stemming from a procedural irregularity.

[10] As for s. 686(1)(b)(iii), we think a miscarriage of justice would be occasioned if we were to close our eyes to the fact that the trial judge, acting without jurisdiction, reconsidered his verdict and substituted a conviction for an acquittal. The fact that the appellant was required to appear in court for sentencing on Count 2, a month after his acquittal on Count 1, is of no assistance to the Crown and it only serves to cloud the issue. If Count 2 had not existed, and the trial judge had simply acquitted the appellant on Count 1 and then a month later, after discovering his error of law, ordered the appellant to reappear so that he could change the verdict from not guilty to guilty of robbery, surely that would amount to a miscarriage of justice. Accordingly s. 686(1)(b)(iii) does not apply.

[11] In the end, we would allow the appeal and enter verdicts of acquittal on both Counts.

Signed: "Karen M. Weiler J.A." "M.J. Moldaver J.A." "Robert P. Armstrong J.A."