CITATION: R. v. Hanson, 2008 ONCA 455

DATE: 20080609

DOCKET: C44554

COURT OF APPEAL FOR ONTARIO

MOLDAVER, SIMMONS and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

ANDREW HANSON

Appellant

Boris Bytensky for the appellant

John Pearson for the respondent

Heard and endorsed: June 5, 2008

On appeal from conviction by Justice Norman Dyson of the Superior Court of Justice, sitting with a jury, dated November 30, 2005 and sentence imposed dated December 8, 2005.

APPEAL BOOK ENDORSEMENT

[1] In response to a question from the jury as to what "failing to do" meant in the context of instructions concerning whether the appellant was a party to the offence of robbery as an aider, the trial judge responded in a way that could have left the jury with the erroneous impression that the appellant could be convicted if he stood by, knowing something was going to happen.

[2] While we recognize that in other places in the charge, the trial judge's instructions on aiding were correct, the erroneous instruction was given in response to a specific question from the jury, giving rise to a concern on our part that the jury may have acted on it.

[3] Our concern in this regard is heightened by the manner in which the jury dealt with counts 2 and 3, both of which related to possession of a firearm. In our view, the 'not guilty' verdict on count 2 is irreconcilable with the guilty verdict on count 3. In both instances, the appellant's liability depended on his being found a party. As indicated, the jury's obvious confusion on these counts, together with the erroneous answer to the question relating to the robbery, creates real concern as to whether the jury may have convicted of robbery on an improper basis.

[4] Accordingly, in relation to the count of robbery, the appeal is allowed and a new trial is ordered.

[5] In respect of count 3, the Crown has fairly conceded that there was no evidence capable of supporting one of the essential elements of the charge. We agree.

[6] Accordingly, the appeal on count 3 is allowed and a verdict of acquittal is entered.