Court File and Parties

CITATION: R. v. Caruk, 2007 ONCA 400

DATE: 20070528

DOCKET: C44561

COURT OF APPEAL FOR ONTARIO

ROSENBERG, SIMMONS AND ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

AARON CARUK

Appellant

Crystal Tomusiak for the appellant

Michelle Campbell for the respondent

Heard and Released Orally: May 10, 2007

On appeal from the judgment of Justice Bonnie Croll of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated November 10, 2005, dismissing the appeal from conviction by Justice Harris of the Ontario Court of Justice dated November 1, 2004

E N D O R S E M E N T

[1] The Crown rightly concedes that the trial judge erred in admitting the appellant’s statement to the police officer without holding a voir dire or without a clear waiver. We have not been persuaded that the Crown has demonstrated that no substantial wrong was occasioned. The trial judge used the statement as some evidence to infer intent. The summary conviction appeal judge did not deal with this aspect of the use of the evidence. Ordinarily this would require a new trial, however, in our view the appropriate disposition is to enter an acquittal.

[2] While the trial judge’s reasons are not entirely clear, we think that the reasonable interpretation is that he did not reject that the appellant entered the building out of curiosity and only formed the intention to commit an indictable offence once he was inside and realized the building was not abandoned. The intent to commit an indictable offence must coincide with the entry. See R. v. Rodney, 2007 ONCA 314 at para. 5.

[3] Accordingly, leave to appeal is granted, the appeal is allowed and the finding of guilt set aside and an acquittal entered.

Signed: “M. Rosenberg J.A.”

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”