COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ponic, 2012 ONCA 904

DATE: 20121220

DOCKET: C55376

Doherty, MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Henry Ponic

Appellant

Counsel:

Heather Pringle, for the appellant

Michelle Campbell, for the respondent

Heard: December 19, 2012

On appeal from the convictions entered by Justice Guy F. DeMarco of the Ontario Court of Justice, dated January 4, 2012.

APPEAL BOOK ENDORSEMENT

[1] The trial judge failed to distinguish between the inquiry required to determine whether the appellant’s conduct had proceeded far enough to constitute the actus reus of an attempt and the distinct question of mens rea. Presence of the latter, a reasonable inference on this record, does not establish the former.

[2] Having regard to the nature of the inquiries made by the appellant and the absence of any “follow up” conduct by the appellant, we do not think the appellant’s conduct can be said, using the reasonable doubt standard, to have gone beyond mere preparation. There was no actus reus for an attempt.

[3] The appeal is allowed, the convictions quashed and acquittals entered.