Court File and Parties

COURT FILE NO.: 53/17

DATE: 2018-02-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Bryan Friginette

BEFORE: Schreck J.

COUNSEL: M. Sabat, for the appellant P. Calarco, for the respondent

HEARD: January 19, 2018

ENDORSEMENT

[1] The Crown appeals the respondent’s acquittal on a charge of failing to comply with a recognizance. I agree that the reasons for judgment, which occupy about six lines of the transcript, were so deficient that they foreclose any meaningful appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 25. I also agree that the trial judge erred in concluding, as he apparently did, that the Crown was required to prove that the respondent had been arrested for the offence he was charged with.

[2] Ordinarily, errors of this nature would entitle the Crown to a new trial. However, as I read the terms of the recognizance which the respondent was charged with having breached, the condition requiring him to remain in his residence was subject to an exception if he was going to counselling. This exception was specifically pleaded in the information. Given that the respondent was arrested in a subway station, it was reasonable to infer that he was going to or coming from somewhere. In my view, this gave an air of reality to the possibility that the exemption applied which the Crown was required to negate: R. v. J.G., 2012 ONSC 1090, at para. 17; R. v. Blaker, 2012 ONSC 6397, at para. 6.

[3] In my view, the situation in this case was similar to that in R. v. Roberts, 2015 ONSC 3031, where the accused was required to be in his residence unless at school or at work (at para. 28):

The Crown in this case set out the specific exceptions for work or school in the Information. Evidence that Mr. Roberts was not at his residence did not prove that he was at neither at work nor school. Unlike Blaker, there was not even prima facie evidence that the exceptions did not apply. On the particular facts, these were essential elements that had to be proven beyond a reasonable doubt.

[4] In this case, there was no evidence as to where the respondent was going to or coming from and therefore no evidence, let alone proof beyond a reasonable doubt, that the counselling exception did not apply. An acquittal was the only reasonable verdict. As a result, while the trial judge erred, the Crown has not met the heavy onus of demonstrating that the error “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-15.

[5] The appeal is dismissed.

Schreck J.

Date: February 1, 2018