CITATION: R. v. Holt, 2008 ONCA 636

DATE: 20080922

DOCKET: C48169

COURT OF APPEAL FOR ONTARIO

Armstrong, Lang and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Warren Holt

Appellant

Mark Halfyard for the appellant

Susan Magotiaux for the respondent

Heard: September 12, 2008

On appeal from the conviction entered by Justice M.J. Epstein of the Ontario Court of Justice dated October 24, 2007.

APPEAL BOOK ENDORSEMENT

[1] The appellant was found in breach of his conditional sentences. There are two main grounds of appeal:

(1) The trial judge shifted the burden of proof to the appellant and;

(2) The trial judge misapprehended the evidence of the appellant and his supporting witness.

It is only necessary to deal with the second ground.

[2] In our view, the trial judge misapprehended the evidence concerning other employment undertaken by the appellant. In light of this misapprehension which was central to the trial judge’s reasoning, we would allow the appeal. Ordinarily, the result would be a new hearing. However, the counsel for the Crown and the appellant are in agreement that in these circumstances, the remaining conditional sentence should be reinstated under the same conditions and terms for the remaining 72 days of the sentence.