COURT OF APPEAL FOR ONTARIO

DATE: 20000412

DOCKET: C32473

RE: HER MAJESTY THE QUEEN (Respondent) –and– WILLIAM
JAMES COOPER (Appellant)

BEFORE: CATZMAN, CARTHY and O’CONNOR JJ.A.

COUNSEL: Michelle K. Fuerst, for the appellant
Amy Alyea, for the respondent

HEARD: April 12, 2000

On appeal from the conviction imposed by Fournier J. dated
March 24, 1999.

E N D O R S E M E N T

[1] We do not accept the appellant’s submission that the evidence relating to the stolen Nintendo and the note left by the appellant was inadmissible. In our view, that evidence was properly admitted, so long as care was taken not to use it as evidence of propensity. We are of the view that it was not so used in the present case.

[2] However, we have concluded that the reasons of the trial judge reflect that he did not deal appropriately with the question of reasonable doubt in assessing the appellant’s evidence.

[3] The case turned essentially on the credibility of the evidence of the appellant and of Ms. Reid. Having regard to the trial judge’s repeated assertions that various aspects of the appellant’s evidence were “not unreasonable” or “absolutely not worthy of credibility”, it appears that the trial judge failed to consider whether, if he concluded that he did not believe the appellant’s testimony, he was, nonetheless, left in reasonable doubt by that evidence. By reason of his failure to consider that question, the verdict cannot stand.

[4] Accordingly, the appeal is allowed, the conviction set aside and a new trial is ordered.

Signed: “M.A. Catzman J.A.”
“J.J. Carthy J.A.”
“Dennis O’Connor J.A.”