COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Msiska, 2012 ONCA 354

DATE: 20120528

DOCKET: C51125

Gillese, Epstein and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Salama Mtende Msiska

Appellant

Peter Thorning and Maureen Salama, for the appellant

Philip Perlmutter, for the respondent

Heard: May 24, 2012

On appeal from the conviction entered on December 19, 2008 and the sentence imposed on March 12, 2009 by Justice Bruce J. Young of the Ontario Court of Justice sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] This appeal must be allowed. The trial judge erred in a number of material ways. His analysis on past signification is flawed by a misapprehension of the evidence and an absence of clear or cogent reasons as to why the principle applied on these facts.

[2] Furthermore, while the trial judge expressed an understanding of the need to make a s. 10(b) ruling, he failed to make such a ruling. Contrary to the Crown’s submission, on a full and detailed reading of the reasons it is not possible to discern that such a ruling was made. Put another way, it could not be made without first making findings and those findings – including those on credibility – were not made.

[3] Self evidently, the s. 24(2) analysis of the trial judge cannot stand.

[4] Accordingly, the appeal is allowed and a new trial is ordered.