COURT OF APPEAL FOR ONTARIO
CHARRON, MOLDAVER and ARMSTRONG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Howard Leibovich, for the respondent
Respondent
- and -
Paul Robertson, for the appellant
EDWIN S.
Appellant
Heard: April 10, 2002
Released Orally: April 10, 2002
On appeal from the conviction imposed by Justice Minoo F. Khooshed dated February 22, 2001 and from the sentence imposed by Justice Khooshed dated May 3, 2001.
1Following his trial in youth court, the appellant was convicted of a number of offences in relation to one complainant and received a disposition of one year in secure custody to be followed by three years probation. He appeals against the conviction and the disposition.
2The charges all related to the appellant’s ex-girlfriend. The allegations, which related to several incidents over the course of a number of months, were serious, including forced sexual intercourse, forcible confinement, assault with a weapon, threats and criminal harassment. The appellant raised numerous grounds on his appeal against conviction.
3While we do not agree with all of the appellant’s submissions, we are concerned with the trial judge’s overall assessment of the evidence. In our view, there must be a new trial. Since there will be a new trial, we will not recite any of the facts as it is not necessary to do so to dispose of this appeal. Our concerns over the trial judge’s assessment of the evidence can be stated as follows.
4The central issue at trial was credibility. The case for the Crown was by no means overwhelming. This is readily apparent from the trial judge’s conclusory remarks following his detailed review of the evidence. He stated:
It has given me a lot of difficulty to look at all the circumstances. I was extremely close to coming to the conclusion that perhaps under these circumstances there may be doubt in my mind as to the accused’s guilt or innocence because of his own testimony, but what I have found is this; the testimony of the victim and the Crown’s witnesses is forthright, clear, believable and I believe it. The testimony of the accused is glib. There are a large number of areas which he has not explained and I have come to the conclusion that there may be some scintilla of suspicion in my mind that he may be telling the truth, but it is not a reasonable doubt. As a matter of fact, I have no doubt that he committed these offences.
5Having regard to the context of the evidence at trial, it is our view that the following errors are fatal to the conviction.
6First, the trial judge erred in excluding the testimony of the appellant’s spouse, concerning a telephone conversation between the appellant and the complainant, on the basis that it was hearsay. The witness had overheard this conversation from an extension line. The evidence as to the contents of the conversation was not introduced for the truth of its contents and, Crown counsel concedes, did not constitute hearsay. Although the complainant and the appellant both gave testimony about this conversation, their respective versions were clearly at odds with one another and the spouse’s testimony could have shed further light on the matter. The telephone conversation in question, in particular because of the time when it took place, was important. If the appellant’s testimony was supported on this point by his spouse, and believed by the trial judge, this evidence may well have affected the verdict.
7Second, the trial judge erred in admitting the testimony of the police officer with respect to her conversation with the complainant’s aunt during which the aunt had expressed fear of the appellant. This evidence which portrayed the appellant as a dangerous person was not admissible for the truth of its contents and to the extent that it was led to explain the aunt’s absence, its prejudicial effect far exceeded its probative value. Significantly, it is apparent from the trial judge’s reasons that he may have made some substantive use of this evidence to support the complainant’s testimony. In the conclusory remarks to his judgment noted above, he made express reference to the evidence of the “victim and the Crown’s witnesses” as a basis for his verdict. Apart from the complainant, the police officer was the only other Crown witness. The trial judge also referred to the officer’s testimony elsewhere in his judgment in reference to the timing of the complaint. However, the nature of the officer’s testimony was such that it could not lend support to the complainant’s testimony, and furthermore, at least in so far as the reference to the conversation with the aunt was concerned, was highly prejudicial to the appellant.
8Third, the trial judge repeatedly stated that there was “no evidence” before him that there were tenants in the basement of the appellant’s house. In fact, there was evidence to that effect from both the appellant and his mother and it is clear that the trial judge was aware of this evidence because he reviewed it. This evidence had been introduced in an attempt to show the unlikelihood that one of the alleged incidents had occurred. The trial judge gave no reasons why he rejected that testimony beyond stating that there was no receipt or documentation showing that there were tenants. Hence, his reasons can only be interpreted as an outright rejection of the evidence on this point because there was no other, or more independent, confirmation.
9There is no question that it was entirely within his purview to reject this evidence. However, it is the trial judge’s approach to that aspect of the defence’s case, when compared to his assessment of those aspects of the complainant’s testimony that were equally unsupported by other evidence, that leaves us with a concern that he may have applied a different standard in assessing the evidence of the Crown and that of the defence. The trial judge made no reference to the total absence of any confirmatory evidence of the complainant’s testimony despite the fact that it would have been reasonable to expect some form of confirmation to have been available on several aspects of her testimony.
10Fourth, the reasons of the trial judge for rejecting the appellant’s testimony raise a further concern that a double standard may have been used. The complainant’s testimony raised a number of issues that were important to her credibility, yet they were not addressed by the trial judge. While it was not incumbent upon the trial judge to review all aspects of the evidence, his reasons disclose a much higher, and in our view, questionable, level of scrutiny when it came to the assessment of the appellant’s testimony.
11The trial judge expressly rejected the appellant’s testimony on the basis of an inconsistency in the appellant’s evidence over whether he had only one bad friend or more than one (as the plural form “friends” found in a letter would indicate), his evasive answers on what these friends were like, and on his apparent inability to recall why he would have been suspended from school. The trial judge found those matters “very significant” on the question of the appellant’s credibility. Although the trial judge was entitled to consider these matters in his assessment of the appellant’s credibility, they were of no great significance to the issues in the case. In the circumstances, it would appear that, in placing such emphasis on these weaknesses in the appellant’s testimony, the trial judge applied a more stringent standard in his assessment of his evidence than he applied to that of the complainant. Further, as disclosed in the excerpt from his reasons referred to earlier, the trial judge’s ultimate rejection of the appellant’s testimony, in a case that he has himself identified as very close, appears to have been based to a significant extent on demeanour. When the reasons are reviewed as a whole, we are not satisfied that the trial judge has applied the proper standard of proof.
12It is for these reasons that the verdict cannot stand. Consequently, the appeal is allowed, the conviction is set aside, and a new trial is ordered. In light of this result, it is not necessary to deal with the sentence appeal. However, we note that the sentence was illegal because it exceeded the maximum cumulative disposition available under the Young Offenders Act, R.S.C. 1985, c. Y-1.
RELEASED: April 23, 2002
“Louise Charron J.A.”
“Michael Moldaver J.A.”
“Robert Armstrong J.A.”