COURT OF APPEAL FOR ONTARIO
SHARPE, JURIANSZ and ROULEAU JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Edward L. Greenspan Q.C., for the appellant
(Respondent)
- and -
ERIC WOLF
Philip Perlmutter, for the respondent
(Appellant)
Heard: June 10, 2005
On appeal from the judgment of Justice Guy P. DiTomaso of the Superior Court of Justice dated March 29, 2004 dismissing a summary conviction appeal from the conviction entered by Justice J. Ritchie of the Ontario Court of Justice dated August 28, 2002.
ROULEAU J.A.:
1The appellant, Eric Wolf, was found guilty of sexual assault, sexual touching and invitation to sexual touching of a five-year old girl he was allegedly babysitting on the night of August 12, 1999. He was sentenced to imprisonment for twelve months and probation for three years. At trial, the appellant testified that he was not babysitting the child that night and was elsewhere when the alleged assault occurred. The defence also called several witnesses in support of the alibi defence.
2The appellant appealed his conviction and sentence to the Summary Conviction Appeal Court. The appeal was heard over three days and was dismissed. Thereafter, this court granted leave to appeal and also released the appellant on bail pending his appeal.
Issues
3The appellant raises several issues including the adequacy of the reasons of both the Summary Conviction Appeal Court and the trial judge. Specifically, the appellant points out that new information relevant to the evidence of a witness was discovered by the Crown post-trial and the Summary Conviction Appeal Court judge failed to address the impact that this new evidence may have had on the trial judge’s decision had such evidence been available at trial.
4The first issue to address is whether there is a reasonable possibility that the trial judge’s verdict would have been affected by the new information disclosed by the Crown after trial.
Analysis
5Central to the appellant’s alibi defence was the testimony of his sister’s lawyer, Ms. Bradley. Ms. Bradley was an independent witness who testified that at 8:00 p.m. on the day of the alleged assault, she was speaking to the appellant by phone at his mother’s home. This corroborated the appellant’s evidence and was consistent with evidence given by the appellant’s mother and sister. If accepted, the evidence of Ms. Bradley demonstrated that the appellant could not have been the person alleged to have committed the offences.
6Ms. Bradley was cross-examined at length by the Crown. Several lines of cross-examination adopted by the Crown were directed at showing that Ms. Bradley’s memory and time-keeping were not reliable. Ms. Bradley had testified, in chief, that on or about July 23, 2000, at the request of the police, she had delivered an envelope containing a relevant document to the Crown attorney’s office. The document was a faxed notice of examination of the appellant which was the subject of the telephone conversation on the evening of the alleged assault. When the appellant’s counsel tendered a copy of this document to be entered as an exhibit, the Crown allowed the document to be marked, but twice told the court that the document had in fact never been received by the Crown attorney’s office. A significant portion of the Crown’s cross-examination of Ms. Bradley (approximately seven pages of transcript) thereafter focused on the alleged delivery of this document to the Crown on July 23, 2000. The questioning furthered the suggestion that Ms. Bradley’s recollection was faulty and not reliable since the document had not been received by the Crown and, at a minimum, Ms. Bradley had not been prudent in properly filing the document with the Crown’s office.
7The delivery of this document was then the subject of brief re-examination by the appellant’s counsel. Following the re-examination, the trial judge briefly questioned Ms. Bradley on this same subject.
8Although the final submissions of Crown counsel at trial did not specifically refer to the fact that the document was never received, they do state that Ms. Bradley’s evidence with respect to times are suspect because, among other things, she “indicated she had no documentation, yet produced a number of documents at trial which, while demonstrating her good intention to assist her client in a criminal proceeding, did little to reinforce the alibi and again, appears to be convenient”. This can be taken as suggesting that Ms. Bradley produced the fax only at trial and was mistaken when she testified that she had delivered the document to the Crown. It invites the trial judge to draw adverse reliability inferences from this.
9The trial judge’s reasons contain little review or analysis of Ms. Bradley’s testimony. He concluded as follows:
With regard to the alibi evidence concerning the telephone conversation with Julia Bradley, I believe that the conversation took place on the evening of August 12, 1999. However, I have concluded that Julia Bradley is mistaken as to the timing of the telephone call, and I consider her evidence in that regard to be unreliable.
There is no indication of what evidence he relied on to reach this conclusion.
10Prior to the summary conviction appeal, the Crown located the document that Ms. Bradley testified was delivered to the Crown. In its factum filed on the summary conviction appeal, the Crown stated as follows:
In her examination in chief, Julia Bradley testified that following the appellant’s arrest the police requested that she drop off a copy of the fax she sent to the appellant’s home on August 12, 1999. Ms. Bradley testified that she left a copy at the Crown’s office around July 23, 2000 and also provided a copy to the appellant’s defence counsel at trial.
During cross-examination, crown counsel’s line of questioning suggested that the fax in question was not received by the Crown’s office from Ms. Bradley and that she was not prudent in properly filing the document.
In preparing the file for the appeal a copy of the fax dropped off by Ms. Bradley to the Crown’s office was discovered and immediately disclosed to appellate counsel on November 20, 2003. The stamp on the fax reveals that Ms. Bradley did deliver a copy of the fax to the Crown’s office on July 23, 2000. Crown counsel at trial was unaware that the fax was in possession of the Crown when she cross-examined Ms. Bradley.
11At the summary conviction appeal hearing and before us, the Crown maintained that this new information would not have affected the trial judge’s analysis of Ms. Bradley’s evidence. The appellant, however, submits that there was a reasonable possibility that the verdict might have been different.
12From my review of the record, it is clear that this was not a trial where the Crown’s case was overwhelming. There were several obvious conflicts in the evidence on critical issues. The trial judge’s reasons were conclusory and contained little or no analysis or explanation to justify his credibility findings. The trial judge’s assessment of Ms. Bradley’s evidence and, specifically, her ability to recollect specific events and times, was no doubt important to his decision.
13When viewed in the context of the full record, the discovery by the Crown after trial that it had in fact received the document as testified to by Ms. Bradley is, in my view, significant and necessitated an assessment of whether this evidence could have impacted the trial judge’s finding and the verdict.
14From the record it is not clear to what extent the issue was fully canvassed in the course of submissions by the parties before the summary conviction appeal judge. This said, it was raised by the Crown as noted above and the summary conviction judge did not make mention of this new evidence, nor did he carry out an assessment of its potential impact. In my view, his failure to do so was an error. I am of the opinion that the new information disclosed by the Crown subsequent to the trial judge’s verdict meets the tests in R. v. Dixon, [1998] 1 S.C.R. 244 and R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307. Accordingly, I would allow the appeal, quash the appellant’s conviction and order a new trial.
15In view of my disposition on the first issue, it is not necessary for me to address the other issues.
“Paul S. Rouleau J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree R. G. Juriansz J.A.”