DATE: 20040512

DOCKET: C37251

COURT OF APPEAL FOR ONTARIO

ABELLA, FELDMAN and ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Philip Downes for the appellant

(Appellant)

• and -

P. Andras Schreck

for the respondent

ALEX DIVITARIS

(Respondent)

HEARD: October 17, 2003

On appeal from a judgment of Justice Russell G. Juriansz of the Superior Court of Justice, sitting with a jury, acquitting the respondent, dated October 16, 2001.

FELDMAN J.A.:

OVERVIEW

[1] The charges in this case arose out of an incident on January 13, 2001, when the respondent went to the complainant’s store. At trial, the respondent and the complainant told diametrically different versions of what happened at the store and the events leading up to the incident. On October 16, 2001, after a two week jury trial before Juriansz J., the respondent was acquitted on charges of robbery with a firearm, forcible confinement, assault causing bodily harm, extortion and possession of stolen property over $5,000 (cash). He was found guilty of theft (a watch) (as an included offence to the robbery charge), possession of stolen property over $5,000 (a watch), possession of a prohibited firearm and possession of a prohibited device. The respondent spent nine months in pre-trial custody and on October 18, 2001, was sentenced to one day in jail and twelve months of probation.

[2] The Crown appeals against the acquittals on a question of law alone: that the trial judge erred in law by charging the jury that evidence of the respondent’s prior consistent statement could be used by the jury for the truth of its contents. The Crown submits further that it can meet its onus on a Crown appeal from acquittal of showing that the jury verdict would likely have been different had the erroneous instruction not been given: Section 686(4) of the Criminal Code, R.S.C. 1985, c. C-46.

[3] For the reasons that follow, I would dismiss the appeal. Although there was an error in law, the Crown has not met its onus for overturning a verdict of acquittal.

FACTS

[4] The twenty-nine year old complainant, Catherine (Cathy) Cosburn, owned and operated the “Funky Skunk,” a store in a Scarborough strip mall that sold items related to hemp and marijuana. The respondent, Alex Divitaris, was twenty-two years old at trial and lived in close proximity to the Funky Skunk with his mother and two brothers.

[5] The respondent completed the eleventh grade in school and has a substantial criminal record consisting of seventeen entries dating back to 1994. It includes convictions for theft, failure to comply, escape lawful custody, obstructing an officer and failure to attend court. At trial, the record was put