DATE: 20060804

DOCKET: C42651

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – K. P. (Y.C.J.A.) (Appellant)

BEFORE:

SIMMONS, ARMSTRONG and ROULEAU JJ.A.

COUNSEL:

James Foord

for the appellant

Tracy Stapleton

for the respondent

HEARD & RELEASED ORALLY:

July 28, 2006

On appeal from the conviction entered by Justice John Menzies of the Superior Court of Justice dated April 16, 2004.

E N D O R S E M E N T

[1] The appellant was convicted of assault with a weapon; breach of a recognizance for failing to keep the peace and be of good behaviour; and breach of a condition in his recognizance that required him to be at his place of residence between 10:00 p.m. and 6:00 a.m.

[2] The appellant appeals only his conviction for the failure to be at his place of residence between 10:00 p.m. and 6:00 a.m.

[3] The trial judge found that the appellant was engaged in the assault at 7:30 or 8:00 p.m. on the evening of June 18, 2002 in the City of Ottawa.

[4] There were four other persons involved in the assault. One of the bystander witnesses said that the appellant was wearing a white baseball cap, a red short-sleeved shirt and blue pants.

[5] Later that evening at about 11:30 p.m., Constable McCabe of the Ottawa police force attended at the appellant’s residence. The appellant was at home. The police officer arrested the appellant and at that time seized from his bedroom a white baseball cap and a red jacket.

[6] Constable McCabe testified as follows in respect of the red jacket:

I do have written down in my notes that the – the red jacket was…The – the word I used was sweaty inside, moist. It must’ve been wet and warm as though somebody had just worn it.

[7] The trial judge gave very brief reasons for judgment which focused on the assault charge. After dealing with the assault charge, the trial judge said:

Likewise, I accept the evidence of the two police officers who testified, Sean Kay and Also Quinn McCabe.

It was Officer McCabe who found the white baseball cap and the red jacket at the defendant’s home at the time of his arrest.

[8] The trial judge concluded:

Having considered all of the evidence and for these brief reasons and accepting, as I do, Katrina Wallin’s evidence that the time of this offence was around 7:30 or 8:00 p.m., I am accordingly satisfied beyond a reasonable doubt that the defendant before the Court was one of those who attacked the victim with a bike lock and I am satisfied beyond a reasonable doubt accordingly that all three charges have been proven.

[9] It is apparent that the trial judge must have convicted the appellant for the breach of curfew based on the evidence of Constable McCabe in relation to his seizure of the jacket.

[10] The appellant argues that there was no clear evidence that the appellant was out of his residence past 10:00 p.m. He further submits that given the trial judge’s finding of fact that the assault occurred at 7:30 or 8:00 p.m., his conclusion in regard to the breach of curfew was unreasonable.

[11] In our view, the evidence that the red jacket was moist and warm at 11:30 p.m. and may have just been worn is not evidence which is capable of establishing beyond a reasonable doubt that the appellant was not in his place of residence past 10:00 p.m. We therefore conclude that the decision reached by the trial judge is not one that a properly instructed jury acting judicially could reasonably have rendered. See R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168.

[12] In the result, the appeal is allowed, the conviction is quashed and an acquittal is entered.

“J. Simmons J.A.”

“Robert P. Armstrong J.A.”

“Paul Rouleau J.A.”