





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 victims 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 appellants 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 appellants 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 appellants 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.


