



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Isley, 2020 ONCA 90

DATE: 20200205

DOCKET: C62703

Miller, Fairburn and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Donald William Norman Isley

Appellant

Richard Litkowski, for the appellant

Bradley Reitz, for the respondent

Heard and released orally:
    January 31, 2020

On appeal from the conviction entered on
    October 8, 2015, and the sentence imposed on December 18, 2015, by Justice C.N.
    Herold of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant argues that the trial judge failed
    to adequately address the jurys questions about: a) why they were not
    presented with evidence as to whether a swab of the appellants clothing was
    tested; and b) whether a footprint found outside of the appellants residence
    where the fire was set was identified.

[2]

The appellant maintains that the trial judges
    answer failed to grapple with what he describes as the jurys fundamental
    concern that the trial judge did not link the importance of the absence of
    evidence on those points  things that may otherwise link the appellant
    forensically to the fire  to the fact that the absence of evidence could raise
    a reasonable doubt.

[3]

We do not agree.

[4]

Read contextually, the answer was complete and legally
    accurate. In particular, it carefully reminded the jury that a reasonable doubt
    can arise from an absence of evidence. There is no objection taken to the
    charge to the jury as it relates to this legal point. Read contextually, the
    answer to the jurys question reinforced this legal principle and specifically
    conveyed to the jury that the things they were concerned with were not evidence
    before them and could raise a reasonable doubt, consistent with
R. v. Lifchus,
[1997] 3 S.C.R. 320
.

[5]

The conviction appeal is dismissed. The sentence
    appeal is dismissed as abandoned.

B.W. Miller J.A.

Fairburn J.A.

Thorburn J.A.


