COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Benoit, 2014 ONCA 457

DATE: 20140610

DOCKET: C57529

Before: Simmons, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

David Benoit

Respondent

Counsel:

Avene Derwa, for the appellant

David Benoit, in person

Heard and released orally: May 16, 2014

On appeal from the acquittal entered on July 23, 2103 by Justice J. Colvin of the Ontario Court of Justice.

ENDORSEMENT

[1] The respondent was charged with robbery. At trial the Crown requested that the respondent be convicted of the lesser included offence of assault. We agree that the trial judge erred in law when he concluded that because the information did not particularize the manner in which the robbery was alleged to have been committed, the respondent could not be convicted of the lesser included offence of assault. See R. v. Simpson, 1981 3284 (ON CA), [1981] O.J. No. 23 (C.A.) and R. v. Luckett, 1980 185 (SCC), [1980] 1 S.C.R. 1140.

[2] On our reading of the trial judge's reasons, he did not make the factual findings necessary to support a finding of guilt for assault. A substituted conviction is not therefore available. To obtain an order for a new trial, “[w]hat the Crown must establish, with a reasonable degree of certainty, is that the verdict would not necessarily have been the same had the errors not been made”: R. v. J.M.H., 2009 ONCA 834, [2009] O.J. 4963 (C.A.). In the unique circumstances of this case, we are not satisfied that the Crown has met that burden.

[3] The appeal is dismissed.

“Janet Simmons J.A.”

“M. Tulloch J.A.”

“P. Lauwers J.A.”