Court of Appeal for Ontario

Citation: R. v. Holmes, 2013 ONCA 149

Date: 20130312

Docket: C55480

Judges: Rosenberg, Juriansz and Epstein JJ.A.

Between:

Her Majesty the Queen Respondent

and

Kayla Holmes Appellant

Counsel: Erika Chozik, for the appellant Christopher Greene, for the respondent

Heard and released orally: March 7, 2013

On appeal from the conviction entered on December 16, 2011 by Justice Julia A. Morneau of the Ontario Court of Justice.

ENDORSEMENT

[1] The Crown concedes that the trial judge erred in holding that there was no air of reality to the defence in s. 3(2) of the regulations.

[2] There was in fact evidence that Ellah had a prescription for the drugs and that the appellant was holding the drugs for her. The burden was then on the prosecution to show that the appellant was not holding the drugs as Ellah’s agent. It failed to do so and accordingly the conviction must be set aside.

[3] Accordingly, the appeal is allowed, the conviction set aside and an acquittal entered.

“M. Rosenberg J.A.”

“R.G. Juriansz J.A.”

“Gloria Epstein J.A.”