COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Appellant) – and – IVAN TITTERTON (Respondent)
BEFORE:
GOUDGE, FELDMAN AND JURIANSZ JJ.A.
COUNSEL:
Leslie Paine
for the Crown, appellant
Joseph Di Luca
for the respondent
HEARD & RELEASED ORALLY:
March 9, 2005
On appeal from the order of the Justice Hugh McLean of the Superior Court of Justice dated September 29, 2004.
E N D O R S E M E N T
1In our view the summary conviction appeal judge was in error in finding that the trial judge applied a higher level of scrutiny to the evidence of the defence than to the evidence of the Crown. It is not enough that the larger portion of her reasons was devoted to the basis for her rejection of the defence evidence. There were no irreconcilable findings in her reasons that would warrant the conclusion that she applied a more strenuous level of review to the defence.
2It was entirely open to the trial judge to reject the defence evidence on the basis that she did, particularly the bias of the defendant and his adamance about the timing of the incident.
3There was a clear basis in the record for her finding concerning the inconsistent defence evidence about the defendant’s position in relation to the lawn mower at the critical time and concerning his consumption of alcohol. Nor was there any relevant problem in the evidence of Ms. Foresta. The same is true of the argued inconsistency between the complainant and her daughter concerning which chair was picked up. The germane fact was that both said the complainant picked up the chair defensively.
4This was a case that turned on the credibility assessment of the witnesses at trial. This is the province of the trial judge. Here the trial judge made no reversible error in discharging this task.
5Leave is granted, the appeal is allowed and the conviction restored.
"S.T. Goudge J.A."
"K. Feldman J.A."
"R.G. Juriansz J.A."