CITATION: R. v. Harry, 2009 ONCA 197

DATE: 20090303

DOCKET: C46617

COURT OF APPEAL FOR ONTARIO

Moldaver, MacFarland and Epstein JJ.A.

BETWEEN:

Damien Ravenal Harry aka Roger Norris Harry

Appellant

and

Her Majesty the Queen

Respondent

Raj Napal for the appellant

Catrina D. Braid for the respondent

Heard and endorsed: March 2, 2009

On appeal from conviction entered by Justice Hugh K. Atwood of the Ontario Court of Justice dated January 9, 2007

APPEAL BOOK ENDORSEMENT

[1] Through no fault on the part of the learned trial judge, the appellant was deprived of his right to make full answer and defence to the charge of unlawfully entering Canada after being the subject of a removal order. Unfortunately, the trial judge was of the view that the Crown could rely on issue estoppel to prevent the appellant from showing (or attempting to show), that he was a Canadian citizen and therefore not subject to a deportation order. The recent decision of the Supreme Court of Canada in R. v. Mahalingam 2008 SCC 63, [2008], S.C.J. No. 64 (S.C.C.), decided after this case, makes it clear that the Crown cannot rely on issue estoppel. Accordingly, the appeal is allowed, the conviction is quashed and a new trial is ordered.