Court File and Parties

Citation: R. v. Davidson, 2007 ONCA 359

Date: 20070511

Docket: C45479

Court of Appeal for Ontario

Before: Feldman, Juriansz and MacFarland JJ.A.

Between:

Her Majesty the Queen Respondent

And

Edward Davidson Appellant

Counsel: Brian Snell for the appellant Amanda Rubaszek for the respondent

Heard and released orally: April 30, 2007

On appeal from the conviction entered by Justice D.J. Gordon of the Superior Court of Justice dated March 31, 2005 and from the sentence imposed by Justice Gordon dated June 15, 2005.

Endorsement

[1] The Crown agrees that to found criminal liability it was essential to prove that before the complainant could be "deprived" she must be "entitled." The Crown at trial proceeded and the conviction rests on the erroneous understanding in law that the appellant's ex-wife was entitled to an interest in the former matrimonial home. She may have been entitled to an equalization payment based on all their assets, but it was clear she had no legal interest in the home.

[2] No calculation of equalization of property was performed. The Crown did not establish that the complainant was entitled to any equalization payment and thus failed to prove the element of deprivation. On this basis the conviction cannot stand. The appeal is allowed, the conviction is set aside and an acquittal is entered. In view of this result, it is unnecessary to deal with the Charter argument or the sentence appeal.

"K. Feldman J.A."

"R.G. Juriansz J.A."

"J. MacFarland J.A"