Court of Appeal for Ontario

CITATION: R. v. Holmes, 2009 ONCA 631

DATE: 20090828

DOCKET: C49754

BEFORE: Laskin, Sharpe and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aaron Holmes

Appellant

Counsel:

Paul Calarco, for the appellant

Robin Flumerfelt, for the respondent

Heard: August 27, 2009

On appeal from the conviction entered by Justice L. Theodore G. Collins of the Ontario Court of Justice on May 5, 2008.

APPEAL BOOK ENDORSEMENT

[1] In our view, the conviction for break and enter cannot stand as the trial judge made no finding that the appellant committed an indictable offence while he was in the house. Nor did the trial judge make the necessary findings that would allow us to substitute a conviction for break and enter with intent to commit an indictable offence.

[2] We are also of the view that the conviction for assault with a weapon cannot stand. The appellant denied the assault. The investigating officer’s evidence that she did not see any skid marks or recall the complainant or Mr. Balko telling her about the skid marks tended to support the appellant’s denial. The officer’s evidence was thus an important piece of evidence on a critical issue. The trial judge was obliged to deal with this evidence. As he did not do so, the conviction should be set aside.

[3] Because we have set aside the break and enter conviction, the stay on the mischief conviction would ordinarily be set aside and the conviction on that charge allowed to stand.

[4] However, as the mischief charge was related to the break and enter charge, we think that the fair result is set aside all the convictions and order a new trial. In considering whether to proceed with a new trial the Crown may wish to take into account that the appellant has served his sentence.

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