DATE: 20060124

DOCKET: C40856

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and- FELIX GONZALES (Appellant)

BEFORE:

LABROSSE, WEILER AND MACFARLAND JJ.A.

COUNSEL:

Paul Calarco

for the appellant

Carol A. Brewer

for the respondent

HEARD & RELEASED ORALLY:

January 16, 2006

On appeal from the judgment of Bruce Hawkins J. of the Superior Court of Justice dated September 15, 2003 made at Toronto, Ontario.

E N D O R S E M E N T

[1] This was a 4-day trial where 20 witnesses testified.

[2] The charge is 9 pages long. It includes some boiler plate, the reading of the definitions of the charges in the indictment, a sequential review of the evidence of 6 witnesses which covers 3 pages, one paragraph on the evidence of the accused, and one paragraph on W.(D.).

[3] It is a skeleton charge; it is incomplete. The model jury charges are essentially ignored. The instructions on the elements of the charges and the defences open to the appellant are unsatisfactory, and relevant evidence of witnesses is ignored. Importantly, the evidence is not in any way related to the elements of the offence.

[4] With respect to self-defence, the subjective element is never put to the jury.

[5] These were serious charges, which resulted in a 4 year sentence for the appellant. In our view, the jury was left in a state of non-direction amounting to misdirection.

[6] The appeal is allowed, the conviction is quashed and a new trial is ordered. In light of this disposition, we need not deal with the Kienapple issue which had been conceded.