Sherry's Case — Cause Disturbance — Appeal Dismissed

Between
Her Majesty the Queen, and Sherry S.

[2005] O.J. No. 658

Ontario Superior Court of Justice
Milton, Ontario
B.J. Wein J.

Appeal Dismissed: 16 February 2005
(5 paras.)

Charge:	Cause Disturbance, Criminal Code, s. 175(1)(a)
Counsel:	A. Goodman, Assistant Crown Attorney, Burlington Craig Penney, Criminal Defence Lawyer, Toronto

¶ 1 WEIN J. (endorsement): — While, had I been sitting as the trial judge on this matter, I might very well have found on these facts that both aspects of the test for cause disturbance were met, I do not find in this case that the learned trial judge erred in law.

¶ 2 She stated the test set out in Lohnes, [1992] 1 S.C.R. 167, correctly, at least at the outset. The Crown argues that in translating the two parts of the test — emotional disturbance and an externally manifested disturbance — into the phrase "a separate resulting disturbance" in reference to the second part of the test, she erred in law. I do not agree. The word 'separate' simply refers to the 2nd part of the test.

¶ 3 In giving an example, the trial judge may unfortunately have used too strong a metaphor, but I cannot find that she thereby overstated the nature of the test, which was clearly before her.

¶ 4 As well, while a more specific reference to why she felt that the walking down the driveway and other reactions of the witnesses were not in this case sufficient in her view to meet the test would have been helpful, that was a conclusion open on the evidence. In so finding, she did not err in law.

¶ 5 Given the limited scope of review on a Crown appeal, the appeal must be dismissed.

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