COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abdalla, 2013 ONCA 233

DATE: 20130411

DOCKET: C55943

Before: Doherty, MacPherson and Cronk JJ.A.

Her Majesty the Queen

Appellant

and

Adham Abdalla

Respondent

Counsel:

Alison Wheeler, for the appellant

Richard Litkowski, for the respondent

Heard: April 10, 2013

On appeal from the acquittals entered by Justice J. Maresca of the Ontario Court of Justice, dated July 30, 2012.

APPEAL BOOK ENDORSEMENT

[1] The trial judge failed to call on the Crown for closing submissions. The trial judge then acquitted the respondent on two charges and convicted on the third.

[2] The failure to give the Crown an opportunity to be heard constituted a fundamental procedural error amounting to an error in law.

[3] Assuming an error like this could ever be overcome by the “curative proviso”, this is certainly not such a case. The points made by the trial judge in her reasons demonstrate various potential fertile grounds for argument.

[4] Given the factual connection among the charges, we think this is an appropriate case to order a new trial on all counts, including the count on which the conviction was entered: see s. 686(8).

[5] The appeal is allowed, acquittals and convictions set aside and a new trial is ordered on all charges.