COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hilan, 2015 ONCA 455

DATE: 20150622

DOCKET: C57944

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Racil Hilan

Appellant

and

Her Majesty the Queen

Respondent

Norman D. Boxall and Jon Doody, for the appellant

Roger Shallow, for the respondent

Heard: April 10, 2015

On appeal from the conviction entered on May 29, 2013 by Justice Hugh L. Fraser of the Ontario Court of Justice.

ENDORSEMENT

[1] On May 29, 2013, the appellant was convicted of one count of sexual assault and one count of mischief by reason of interference with the complainant’s lawful use and enjoyment of property contrary to s. 430(d) of the Criminal Code. He was subsequently sentenced to six months’ imprisonment plus two years’ probation in relation to the sexual assault charge and to two months’ imprisonment, concurrent, in relation to the mischief charge.

[2] On April 10, 2015, we gave oral reasons dismissing the appellant’s conviction appeal on the sexual assault charge, but allowing his sentence appeal in relation to both offences by varying the sentences of imprisonment on both charges to a suspended sentence plus probation (with the sentence on the mischief count to run concurrently). We reserved judgment on the appellant’s conviction appeal on the mischief charge pending receipt of written submissions.

[3] The charges arose out of an incident during which the appellant touched the complainant and raised her skirt while seated beside her on a public bus. Evidence at trial indicated that as a result of the appellant’s conduct, the bus was put out of service and all passengers had to leave the bus.

[4] The mischief charge on which the appellant was arraigned alleges simply that the appellant interfered with the complainant’s lawful use and enjoyment of property. It does not particularize the property interfered with – that is, it does not stipulate whether the property interfered with was the complainant’s skirt, the bus, or some other property. No submissions were made at trial concerning the mischief charge. In finding the appellant guilty, the trial judge simply said:

[The complainant] was sexually assaulted by [the appellant] while she was a passenger on an OC Transpo bus. Her right to the lawful use and enjoyment of that bus was interfered with as a result.

[5] In our view, in the absence of any submissions from counsel concerning this offence, the trial judge erred in making a finding that particular property had been interfered with. The appellant was entitled to know the allegation against him and have an opportunity to make meaningful submissions in relation to it before a finding of guilt was made. Further, the trial judge conducted no separate analysis of the elements of the offence of mischief or whether they had been satisfied. In the result, the appeal must be allowed.

[6] Accordingly, the appellant’s conviction appeal against the mischief charge is allowed, the conviction for mischief is set aside and a new trial is ordered. We observe that the sentence imposed on the mischief charge will be vacated as a result of this order.

“Janet Simmons J.A.”

“M. Tulloch J.A.”

“Grant Huscroft J.A.”