Court of Appeal for Ontario

Citation: R. v. Fulton, 2011 ONCA 75

Date: 20110127

Docket: C52045

Before: Doherty, Laskin and Gillese JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Sonnie Fulton

Appellant

Counsel:

Rosalind Conway, for the appellant

Dayna Arron, for the respondent

Heard and released orally: January 24, 2011

On appeal from the conviction entered by Justice Richard Lajoie of the Ontario Court of Justice dated January 15, 2010 and the sentence imposed on January 15, 2010.

ENDORSEMENT

[1] There is no doubt that the appellant broke into the victim’s home and that his entry was unlawful. The trial judge also found that the appellant committed the offence of mischief in the course of entering the house by causing damage to the window through which he entered and by disturbing some of the objects on a wall unit he pushed aside to gain access to the house. The trial judge, however, never turned his mind to the appellant’s intention when the appellant entered the house and specifically whether at the time he entered he intended to commit an indictable offence in the home. On the very unusual facts of this case, the appellant’s intention at the time he entered the home was a significant issue and one on which there was a clear factual dispute.

[2] The Crown has convinced us that there was a factual basis upon which the trial judge could have found that the appellant intended, as he entered the home, to commit an indictable offence in that dwelling. Unfortunately, the trial judge did not make the necessary findings of fact or address the question of the appellant’s intention when he broke into the home. The evidence does not permit us to make the necessary factual findings.

[3] The appeal is allowed and a new trial is ordered. It is, of course, for the Crown to determine whether in all of the circumstances, a new trial is warranted.

“Doherty J.A.”

“J.I. Laskin J.A.”

“E.E. Gillese J.A.”