DATE: 20011106
DOCKET: C32794

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and- WESLEY OWEN (Appellant)

BEFORE:

FINLAYSON, AUSTIN and SHARPE JJ.A.

COUNSEL:

Howard Borenstein for the appellant

Joan Barrett for the respondent

HEARD:

October 26, 2001

On appeal from the dismissal of the order of Justice Gordon I. A. Thomson dated August 11, 1999, dismissing an appeal from the conviction by Judge C. Roland Harris dated September 22, 1998.

E N D O R S E M E N T

[1] The appellant was found guilty of assaulting a police officer engaged in the execution of his duty and sentenced to twenty-two days in jail to be served intermittently and one year probation. The appellant’s summary conviction appeal to a judge of the Superior Court of Justice was dismissed. He has now served his sentence but he seeks leave to appeal to this court, and if leave is granted, appeals the dismissal of his conviction.

[2] In our view, the summary conviction appeal judge erred in failing to recognize a significant error in the reasons of the trial judge. Those reasons demonstrate that the trial judge applied a different standard in assessing evidence of the appellant from that used to assess the credibility of the police witnesses in that he subjected the appellant’s evidence to a higher standard of scrutiny. The trial judge rejected the evidence of the appellant largely on the grounds of his demeanour. He identified only one minor contradiction in the appellant’s evidence with respect to whether the blinds in the room where the alleged assault occurred were open or closed. He took a much more lenient approach when assessing the evidence of the police officers despite a serious weakness in their testimony. It was apparent that the police officers had closely collaborated in the preparation of their notes. However, both officers testified under oath that they had prepared their notes independently and denied collaborating. The trial judge found that the two police officers had indeed collaborated when preparing their notes but he gave little or no weight to this weakness in their evidence. Given the importance of their notes as a record of the alleged assault, this lack of candour of the police officers presented a striking and fundamental weakness in their evidence, certainly more significant than anything mentioned by the trial judge with respect to the appellant’s evidence.

[3] While an appellate court must defer to a trial judge’s assessment of credibility, intervention is appropriate where a trial judge’s reasons reflects legal error in the method used to assess credibility. In particular, this court has held that the application of a stricter standard of scrutiny to the evidence of an accused than that used to assess the evidence of Crown witnesses amounts to legal error justifying appellate intervention: see R. v. C (J.) (2000), 2000 CanLII 1931 (ON CA), 145 C.C.C. (3d) 197, R v. C.S., [1999] O.J. No. 2200 and R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53.

[4] Accordingly, leave to appeal is granted, the appeal from the summary conviction appeal judge is allowed and the conviction is set aside. In the circumstances of this case, the appropriate remedy is that an acquittal be entered.

“J. D. Finlayson”

“A. M. Austin”

“Robert J. Sharpe”