DATE: 20050914

DOCKET: C42407

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and- BRUCE WILKIE (Appellant)

BEFORE:

LASKIN, GOUDGE and FELDMAN JJ.A.

COUNSEL:

Owen Haw

for the appellant

Richard A. Kramer

for the respondent

HEARD & ENDORSED:

September 13, 2005

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

[1] The appellant argues two grounds of appeal against his conviction.

(1) He was prejudiced by the amendment of count two, which deleted the word “wilfully.”

(2) The verdict was unreasonable

[2] We did not call on the Crown on the first ground. We agree with the trial judge and the summary conviction appeal court judge that the amendment did not prejudice the appellant. The Crown still had to prove intent and the defence that this was a misunderstanding would have remained the same.

[3] On the second ground of appeal we agree with the Crown that there was evidence in the record that reasonably supported the verdict.

[4] That said, in our view the trial judge’s reasons reveal a basic inconsistency. Although the trial judge finds that the appellant intentionally misled the customs officials, she also finds that the appellant was an honest witness, whose evidence she accepted. That evidence included his denial of any intent to mislead. These two findings cannot stand together. The summary conviction appeal court judge did not advert to this basic inconsistency. In these circumstances we think that the only fair result is to set aside the conviction and order a new trial.