COURT OF APPEAL FOR ONTARIO

DATE: 20050318

DOCKET: C41087

RE: HER MAJESTY THE QUEEN (Respondent) – and – WAYNE McQUIGGIN (Appellant)

BEFORE: SHARPE, SIMMONS and LAFORME JJ.A.

COUNSEL: Leslie Maunder for the appellant Roger Shallow for the respondent

HEARD & RELEASED ORALLY: March 15, 2005

On appeal from the conviction entered on September 11, 2003 and the sentence imposed by Justice C.A. Tucker of the Superior Court of Justice on October 17, 2003.

E N D O R S E M E N T

[1] The appellant appeals his conviction for break and enter and assault and his sentence of thirty-six months less 410 days credit for pre-trial custody. The appellant submits that the trial judge failed to provide the jury with clear instructions as to the defence he raised. While a more precise legal instruction would have been preferable, when read in conjunction with the closing addresses of counsel, we are satisfied that at the end of the day, had the jury accepted the appellant’s evidence or had his evidence raised a reasonable doubt, the jury would have acquitted him.

[2] The trial judge put the defence position more or less in the same terms as defence counsel’s closing. She also gave a WD instruction. She conducted a pre-charge conference and defence counsel did not ask for the more precise instruction now advocated on appeal, nor did defence counsel object to this aspect of the charge.

[3] Accordingly, even if the trial judge failed to attach a precise legal label to the defence raised, we are satisfied that the jury understood the defence position and that the appellant had a fair trial. The appeal against conviction is dismissed.

[4] As for the sentence appeal, the trial judge misstated the standard of proof applicable to aggravating factors. In the face of the jury’s acquittal on the assault bodily harm element to the break and enter, this was a serious error warranting review by this court. While the offence for which the appellant was convicted was serious, and the appellant has a record, in the absence of adequate findings regarding the aggravating factors, the sentence was, in our view, excessive.

[5] We grant leave to appeal sentence, allow the appeal from sentence and substitute a sentence of time served (the equivalent of fifteen and a half months).

“Robert J. Sharpe J.A.”

“J.M. Simmons J.A.”

“H.S. LaForme J.A.”