DATE: 20010223

DOCKET: C31377

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– DELTA DAVIDSON (Applicant/Appellant)

BEFORE: CATZMAN, CARTHY and WEILER JJ.A.

COUNSEL: Benson Cowan, for the appellant

M. David Lepofsky, for the respondent

HEARD: January 16, 2001

On appeal from the judgment of the Justice Peter B. Tobias, sitting as summary conviction appeal court judge, dated June 11, 1997.

O R A L E N D O R S E M E N T

[1] The appellant was convicted of public mischief by providing false information alleging sexual assault, thereby misleading an O.P.P. officer contrary to s.140 of the Criminal Code.

[2] The appellant attended at the residence of Mr. Carlton, her former boyfriend, during which time an altercation took place. Both the appellant and Mr. Carlton reported the altercation to the police. She alleged that Mr. Carlton had sexually assaulted her by fondling her breasts roughly and that two of the buttons on her blouse had been forcibly ripped off while the blouse was done up. Mr. Carlton told the police that it was the appellant who had assaulted him and that he had not ripped the buttons from her blouse. The police preferred Mr. Carlton’s version as to what happened. The appellant was charged and convicted by a provincial court judge. Her appeal to a summary conviction appeal judge was dismissed.

[3] The appellant’s main ground of appeal concerns the admissibility of expert evidence at trial and its place in the trial judge’s reasons. A forensic expert testified that the results of “tests” conducted by him suggested that the two buttons of the appellant’s shirt were torn off when the shirt was undone. The implication of his evidence was that the appellant had ripped the buttons from her blouse herself in furtherance of her allegation of sexual assault. The expert agreed that the word “suggests” is somewhere below probable within the scientific community.

[4] Whatever view one takes of the admissibility of the expert’s evidence, the trial judge misapprehended it when he said:

I accept the forensic evidence that indicated that after examination of the buttons and the blouse, the conclusion of the expert was that the buttons had not been ripped off while they were in the buttonhole space.

[5] A misapprehension of the evidence will lead to an appeal being allowed where a trial judge is mistaken as to the substance of a part of the evidence that is material and the error plays an essential part in the reasoning process resulting in a conviction. The respondent submitted that the “misapprehension” was but one point out of seven enumerated by the trial judge for rejecting the appellant’s evidence and accepting the evidence of the respondent.

[6] In our opinion, the judge’s misapprehension of the evidence did figure prominently in his reasoning process. Based on this misapprehension of the expert’s evidence, the trial judge found:

This only leads to the conclusion that they were ripped off the blouse after the blouse was open and in those circumstances the only person who could have done that and then placed the buttons in her pocket was Delta Davidson herself.

[7] The appellant has demonstrated that the misapprehension of the evidence was a critical basis on which the conviction rested. Accordingly, we would grant leave to appeal, set aside the conviction, allow the appeal and direct a new trial.

Signed: “M.A. Catzman J.A.”

“J.J. Carthy J.A.”

“K.M. Weiler J.A.”