DATE: 20060425

DOCKET: C42635

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – REVEREND BROTHER MICHEL ETHIER (Appellant)

BEFORE:

ROSENBERG, FELDMAN and JURIANSZ JJ.A.

COUNSEL:

Reverend Brother Michel Ethier

In person

Mr. Burstein

Duty Counsel

Marie Comiskey

for the respondent

HEARD:

September 26, 2005

E N D O R S E M E N T

[1] On September 26, 2005, this court heard the appellant’s appeal from conviction for possession of marijuana, breach of recognizance and obstructing a police officer. The appellant was unrepresented but had the assistance of duty counsel, Mr. Burstein. At that time, the court dismissed the appeal from conviction for possession of marijuana and breach of recognizance.

[2] However, at the hearing of the appeal, Mr. Burstein raised a ground of appeal concerning the adequacy of the trial judge’s reasons as they related to the obstructing a police officer charge. At the request of the Crown, we adjourned the hearing of the appeal with respect to that part of the appeal to permit Crown counsel to obtain a transcript of the evidence of Constable Boivin and consider her position on this new ground of appeal.

[3] Crown counsel has now obtained the transcript and concedes that the appeal must be allowed and a new trial ordered. We agree with that concession. The appellant raised a possible defence to the obstructing police charge that was not considered by the trial judge. His sole reasons in respect to that charge were: “With regard to count three, likewise the elements for that offence have been made out.”

[4] Accordingly, the appeal is allowed and a new trial ordered. In light of this disposition, the appellant’s motion to have the appeal allowed because of delay in obtaining the transcript is moot and is quashed.

Signed: “M. Rosenberg J.A.”

“K. Feldman J.A.”

“R.G. Juriansz J.A.”