DATE: 20011023

DOCKET: C33763

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – S. P. (A Young Offender) (Appellant)

BEFORE:

CARTHY, WEILER and FELDMAN JJ.A.

COUNSEL:

Norman Boxall

For the appellant

Erin MacCarthy

For the respondent

HEARD:

September 13, 2001

On appeal from the judgment of Justice Paul H. Megginson dated December 20, 1999.

ENDORSEMENT

[1] The appellant, a young person, was found guilty of uttering a threat to cause death or bodily harm to the complainant with respect to an October 1998 incident. He was acquitted of uttering a threat to cause death to the same complainant relating to a subsequent incident on February 2, 1999. The disposition imposed on the appellant in relation to the October 1998 incident was 18 months’ probation to be interrupted by a secure custody disposition of 45 days commencing July 4, 2000, when the appellant would have finished school. The appellant appeals his conviction on the basis that the trial judge misapprehended the evidence and failed to apply the test in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C). In addition, the appellant appeals his disposition.

Issue

[2] The Crown conceded that the disposition is illegal because the period of probation starts before the custodial portion. The Crown asks that the custodial disposition be maintained.

Facts

[3] The October incident is alleged to have taken place while the complainant, standing in a school parking lot, was conversing with the appellant as he sat in the rear of his friend’s car. The complainant testified that she made a remark to the appellant that prompted the appellant to call her a “smart ass”, and then to point a firearm or imitation firearm at her, saying that he would “put a bullet” in her. The complainant’s friend, M. McC., testified that, after the incident, the complainant looked “really scared.”

[4] The appellant denied that he had a weapon or that he had threatened the complainant. The driver of the car, C.H., testified that he had no recollection of any such incident but that, if the incident had taken place, he would have recalled it. In addition, R.S., a friend of the appellant, testified that the complainant later told her she had made up the story.

[5] In acquitting the appellant of the February incident, the trial judge found that the complainant had deliberately lied about her participation in that altercation and that this was “a negative factor concerning [her] credibility.” Nevertheless, he found that the fact that the complainant had deliberately lied at the same trial in respect of allegations against the same accused (and where, therefore, the animus to lie would be the same), “simply does not logically ‘carry over’ to assessment of [her] credibility (nor M. McC.’s) concerning these counts” (the October 1998 counts). Instead, he commented favourably on the complainant’s testimonial demeanour with respect to this incident, although he noted that demeanour cannot be determinative. He also accepted the evidence of the complainant’s friend, M. McC., who said that the complainant told her what had happened shortly after the alleged incident. M. McC. had also given evidence for the Crown with respect to the February event, and in that case her evidence did not satisfy the trial judge beyond a reasonable doubt.

[6] The trial judge also discounted all the defence evidence on the basis that it was at variance and therefore unreliable. It is not surprising that descriptions may not coincide where the witnesses say that to their recollection that date was uneventful.

[7] Also, that characterization cannot apply to the evidence of R.S. who testified that the complainant had told her that her story about the appellant was untrue. The trial judge’s only comment about this evidence was: “In fairness, I also observe that R.S., in terms of testimonial demeanour, presented (as did J. McA. [the complainant]) as a cogent, coherent, intelligent and articulate witness.” In other words, the trial judge commented favourably on the evidence of this witness, yet gave it no effect in coming to his conclusion that the evidence as a whole satisfied him of the guilt of the appellant beyond a reasonable doubt.

[8] Similarly, the trial judge did not refer in his review of “all the evidence” relating to the October incident to the evidence of C.H., the boy who was alleged to be driving the car on the date of the incident. He had no memory of the incident and denied ever seeing a gun.

Analysis

[9] The Crown relies on R. v. Burns (1994), 1994 127 (SCC), 89 C.C.C. (3d) 193 (S.C.C.), as well as R. v. Barrett (1995), 1995 129 (SCC), 96 C.C.C. (3d) 319 (S.C.C.) for the proposition that a trial judge’s reasons need not reflect the full extent of his or her analysis of the facts or of the law, and that trial judges are presumed to know and apply the law. However, these cases do not apply where, as here, the reasons of the trial judge suggest that he misapprehended some of the evidence.

[10] In his reasons, the trial judge did not make reference to any instruction to himself on the application of the test in W.(D.). Although reference to the case by name is not necessary, the application of the test in weighing and assessing the evidence as a whole is mandatory.

[11] It appears from the reasons of the trial judge in this case that he did not apply W.(D.). It appears that because the trial judge accepted the complainant’s evidence respecting the October 1998 incident, he rejected the defence evidence without considering whether it gave rise to a reasonable doubt. The evidence of R.S. alone, if not rejected, could raise a reasonable doubt. Taken together with the impaired credibility of the complainant based on her deliberate lie regarding the February occurrence, the verdict of guilty is unsafe and cannot stand.

[12] These flaws in the trial judge’s analysis render the verdict unreasonable within the parameters articulated in R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. 1 at 21 (S.C.C.) and R. v. Burke (1996), 1996 229 (SCC), 105 C.C.C. (3d) 205 (S.C.C.), and require this court to set aside the verdict of guilty. In discussing the test for an appellate court to apply in determining whether the judgment of a trial judge is unreasonable or cannot be supported by the evidence, the Court in Biniaris (at 22) stated that:

[T]he court of appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion. The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached.

[13] Section 686(2) of the Criminal Code allows a Court of Appeal which quashes a conviction on the basis that the verdict is an unreasonable one, to order a new trial or enter an acquittal.

[14] It would be unfair to the appellant to face a new trial relating to the October 1998 incident alone before a trier of fact who would not hear all of the evidence of the complainant relating to both incidents, including what the trial judge considered to be deliberate lies in connection with the February 1999 incident. Accordingly, this court must substitute a verdict of not guilty.

[15] The appeal is therefore allowed, the conviction is set aside and a verdict of acquittal entered.

Signed: "J. J. CARTHY J.A.'

"K. H. WEILER J.A."

"K. FELDMAN J.A."