COURT OF APPEAL FOR ONTARIO

DATE: 2006-06-09

DOCKET: C42450

RE: HER MAJESTY THE QUEEN (Respondent) – and - ROBERT KARAS (Appellant)

BEFORE: WEILER, BLAIR and ROULEAU JJ.A.

COUNSEL: Michael W. Czuma for the appellant

Grace Choi for the respondent

HEARD & DECISION RELEASED ORALLY: June 2, 2006

On appeal from the judgment of Justice Norman D. Dyson of the Superior Court of Justice dated September 2, 2004, dismissing a summary conviction appeal from a conviction entered by Justice Donna G. Hackett of the Ontario Court of Justice.

E N D O R S E M E N T

[1] At the conclusion of oral submissions, we dismissed the appeal, with reasons to follow. These are those reasons.

[2] Robert Karas was convicted by Hackett J. of the Ontario Court of Justice on two counts of assault and assault with a weapon. He appealed his conviction to the summary conviction appeal court on the grounds that Hackett J. erred in her approach to assessing credibility and that the verdicts were unreasonable. The summary conviction appeal court judge dismissed the conviction appeal but reduced the sentence. The appellant appeals that decision on the basis that the summary conviction appeal court judge erred in not providing reasons for his decision to dismiss the conviction appeal.

[3] At the hearing of the appeal, the Crown conceded that the summary conviction appeal judge’s failure to give reasons is an error of law. However, subsequent to the oral hearing, the Crown advised the court that brief oral reasons had been given by the summary conviction appeal court judge but that they had not been recorded and were therefore not available and cannot be reviewed by this court. Because no reporter was present, the summary conviction appeal court judge should have put a brief written endorsement on the record. In the absence of reasons capable of review, the appellant is deprived of meaningful review by this court of the summary conviction appeal judge’s decision concerning any errors of law.

[4] The fact that there are no reasons that this court can review from the summary conviction appeal court judge explaining why he dismissed the appeal does not, however, automatically dictate that this appeal be allowed. This court cannot apply the proviso but can consider the trial record and, if the reasons of the trial judge do not demonstrate reversible error, dismiss the appeal (see R. v. Minuskin (2003), 68 O.R. (3d) 577 (C.A.)). In the present case the Crown filed the appellant’s factum on the summary conviction appeal and it is apparent that the grounds of appeal argued by the appellant on the summary conviction appeal below were the same grounds as are advanced in this court.

[5] The appellant submits that the trial judge decided the case on the basis of a credibility contest between Crown and defence witnesses and failed to carry out the analysis required pursuant to R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.).

[6] We do not agree. The trial judge’s reasons are comprehensive and there is no indication that the trial judge viewed her task as the judging of a credibility contest between Crown witnesses and defence witnesses. The trial judge properly recognized the fundamental principle that the onus rests on the Crown to prove each element of the defence beyond a reasonable doubt. While she did not explicitly articulate the W.(D.) steps, it was not required that she mechanically recite them. Her reasons as a whole demonstrate that she took the correct approach to assessing the evidence and was convinced beyond a reasonable doubt by the Crown’s evidence.

[7] The appellant further submits that the trial judge engaged in an impermissible and erroneous process of reasoning not in accordance with the approach set out in R. v. Morin (1988), 44 C.C.C. (3d) 193 (S.C.C.) because she came to her decision by a series of separate and exclusive judgments on each part of the evidence and did not look at the whole of the evidence to weigh its cumulative effect.

[8] We do not consider the trial judge’s approach to have been improper. While she dealt with the credibility and reliability of the various witnesses, there is nothing in her reasons to indicate that, after doing so, she did not consider the evidence as a whole before reaching her conclusion.

[9] The appellant also submits that the trial judge applied a stricter standard of scrutiny to the evidence called by the accused than to the Crown evidence. We do not agree. The reasons clearly demonstrate that the evidence of the Crown witnesses was scrutinized and analyzed in as a thorough a fashion as the evidence of the defence witnesses. The fact that she ultimately made positive credibility findings with regard to the Crown witnesses does not mean that she diminished the standard of scrutiny applied to their evidence. Her approach to assessing the evidence of all the witnesses was fair and even-handed.

[10] There was clearly evidence on which the appellant could be found guilty. Mr. Topos’ evidence that the appellant waved the saw in his face was corroborated by the evidence of Chris Topos and Mr. Oikle, as was Mr. Topos’ evidence that the appellant banged his head onto the seat of the van. The verdict was entirely reasonable and supported by the evidence.

[11] For these reasons, leave to appeal is granted but the appeal is dismissed.

“K.M. Weiler J.A.”

“R.A. Blair J.A.”

“Paul S. Rouleau J.A.”