R. v. Fulton
The trial judge erred by failing to make required factual findings about the appellant's intention at the time of unlawful entry; because the evidence did not permit the Court of Appeal to make those findings, the appropriate remedy is to allow the appeal and order a new trial.
Source-derived case information.
- Citation
- 2011 ONCA 75
- Parties
- Respondent: Her Majesty the Queen; Appellant: Sonnie Fulton
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 27 January 2011
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence; Judgment Vacated and New Trial Ordered
- Outcome
- Appeal allowed; new trial ordered
- Legal Topics
- Break and Enter, Mischief, Intent, Appeal, New Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Sonnie Fulton
Appellant
Procedural Posture
Criminal / Appeal From Conviction and Sentence; Judgment Vacated and New Trial Ordered
Legal Issues
- 1 Whether the trial judge failed to determine the appellant's intention at the time of entry
- 2 Whether the evidence supports a finding that the appellant intended to commit an indictable offence when entering the dwelling
- 3 Whether the failure requires ordering a new trial
Ratio Decidendi
The trial judge erred by failing to make required factual findings about the appellant's intention at the time of unlawful entry; because the evidence did not permit the Court of Appeal to make those findings, the appropriate remedy is to allow the appeal and order a new trial.
Court Disposition
Appeal allowed; new trial ordered
Orders
- Appeal allowed
- New trial ordered
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Fulton Collection Decisions of the Court of Appeal Date 2011-01-27 Neutral citation 2011 ONCA 75 Docket numbers C52045 Judges Doherty, David H.; Laskin, John Ivan; Gillese, Eileen E. Subject Criminal Decision Content CITATION: R. v. Fulton, 2011 ONCA 75 DATE: 20110127 DOCKET: C52045 COURT OF APPEAL FOR ONTARIO Doherty, Laskin and Gillese JJ.A. BETWEEN Her Majesty the Queen Respondent and Sonnie Fulton Appellant Rosalind Conway, for the appellant Dayna Arron, for the respondent Heard and released orally: January 24, 2011 On appeal from the conviction entered by Justice Richard Lajoie of the Ontario Court of Justice dated January 15, 2010 and the sentence imposed on January 15, 2010. ENDORSEMENT [1] There is no doubt that the appellant broke into the victim’s home and that his entry was unlawful. The trial judge also found that the appellant committed the offence of mischief in the course of entering the house by causing damage to the window through which he entered and by disturbing some of the objects on a wall unit he pushed aside to gain access to the house. The trial judge, however, never turned his mind to the appellant’s intention when the appellant entered the house and specifically whether at the time he entered he intended to commit an indictable offence in the home. On the very unusual facts of this case, the appellant’s intention at the time he entered the home was a significant issue and one on which there was a clear factual dispute. [2] The Crown has convinced us that there was a factual basis upon which the trial judge could have found that the appellant intended, as he entered the home, to commit an indictable offence in that dwelling. Unfortunately, the trial judge did not make the necessary findings of fact or address the question of the appellant’s intention when he broke into the home. The evidence does not permit us to make the necessary factual findings. [3] The appeal is allowed and a new trial is ordered. It is, of course, for the Crown to determine whether in all of the circumstances, a new trial is warranted. “Doherty J.A.” “J.I. Laskin J.A.” “E.E. Gillese J.A.”