Court of Appeal for Ontario

CITATION: R. v. Garcia, 2008 ONCA 843

DATE: 20081212

DOCKET: C46678

Sharpe, Blair and Rouleau JJ.A.

Parties

BETWEEN:

Her Majesty The Queen

Respondent

and

Edgar Samuel Garcia

Appellant

Counsel and Hearing

Howard L. Krongold for the appellant

Holly Loubert for the respondent

Heard and released orally: December 5, 2008

On appeal from the convictions imposed by Justice Walter S. Gonet of the Superior Court of Justice dated December 5, 2006.

ENDORSEMENT

[1] Reading the record and the trial judge’s reasons, we are unable to discern two fundamental issues: 1) the basis upon which the evidence of the appellant’s prior misconduct was admitted and 2) the use the trial judge made of that evidence.

[2] There is no clear ruling from the trial judge as to the basis upon which he admitted evidence of the appellant’s prior misconduct. Initially, he refused to allow the Crown to lead the evidence as appellant’s trial counsel had admitted that the appellant had an animus towards the victim. Later, the trial judge himself opened the door by asking the appellant details underlying his convictions.

[3] Similarly, it is not clear to us whether the trial judge used this as similar fact evidence or as evidence going to credibility when he convicted the appellant. While we agree that the evidence might have been admissible following a proper Handy analysis, reading the record as a whole, the pathway to guilt is simply unclear.

[4] Accordingly, the appeal is allowed, the convictions are set aside and a new trial ordered.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”