CITATION: R. v. McKenna, 2007 ONCA 188

DATE: 20070319

DOCKET: C43048

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – RAYMOND McKENNA (Appellant)

BEFORE: CATZMAN, ROSENBERG and GOUDGE JJ.A.

COUNSEL: Gregory Lafontaine for the appellant Tracy Stapleton for the respondent

HEARD & RELEASED ORALLY: March 12, 2007

On appeal from conviction by Justice John F. Hamilton, of the Superior Court of Justice, sitting with a jury, dated November 10, 2004 and sentence imposed on January 11, 2005.

E N D O R S E M E N T

[1] The principal defence in this case was that the appellant accidentally hit the victim causing her to fall. Essential to that defence was the appellant’s almost complete blindness.

[2] The trial judge expressly told the jury, however, that blindness was relevant only to foreseability of bodily harm and was not relevant to the issue of accident. This was an error. We are not satisfied that if the jury had been properly instructed, the verdict would necessarily have been the same. Accordingly this is not a proper case to apply s. 686(1)(b) (iii) of the Criminal Code.

[3] Accordingly, the appeal is allowed, the conviction is set aside and a new trial ordered.

Signed: “M. Rosenberg J.A. (I am authorized to sign on behalf of Catzman J.A.”

“M. Rosenberg J.A.”

“S.T. Goudge J.A.”