Court File and Parties

Citation: R. v. Baksh, 2008 ONCA 116 Date: 2008-02-19 Docket: C45076

Court of Appeal for Ontario Winkler C.J.O. and Sharpe and Juriansz JJ.A.

Between:

Her Majesty the Queen Respondent

and

Kadir Baksh Appellant

Counsel: Allan D. Gold for the appellant Riun Shandler for the respondent

Heard & released orally: February 15, 2008

On appeal from judgment of Justice S. Casey Hill of the Superior Court of Justice dated December 13, 2005.

Endorsement

[1] We do not agree that the trial judge erred in admitting into evidence the agreed statement of facts from the mistrial. While this document may have served as a formal admission pursuant to s. 655 of the Criminal Code at the earlier trial, it was not used to that effect at the second trial.

[2] Acting under legal advice, the appellant, himself a lawyer, signed the agreed statement of facts, which contain no qualification or limitation as to its use. The trial judge admitted it as evidence which could be explained or contradicted. We see no error in that regard.

[3] Nor do we agree that using that agreed statement of facts violated the appellant’s s.13 Charter rights. Making a voluntary admission is not the equivalent of testifying at trial and R. v. Dubois, 1985 10 (SCC), [1985] 2 S.C.R. 350 and R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 are distinguishable on that basis.

[4] We share the trial judge’s doubt as to the legal validity of the retroactive consent argument but, in any event, we see no basis to interfere with the trial judge’s finding of fact that there was no retroactive consent in this case.

[5] In view of the fresh evidence as to the appellant’s medical condition, we delete the term of the conditional sentence requiring the appellant to perform 200 hours of community service.

[6] Accordingly, leave to appeal sentence is granted, the sentence is varied as indicated, but otherwise, the appeal is dismissed.

“W.K. Winkler C.J.O.” “Robert J. Sharpe J.A.” “R.G. Juriansz J.A.”