DATE: 2001-05-29

DOCKET: C34927

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – DONALD SCOTT SIMONS (Appellant)

BEFORE: WEILER, AUSTIN and BORINS JJ.A.

COUNSEL: Alexander Fiszauf, for the appellant Laura Hodgson, for the respondent

HEARD: May 8, 2001

On appeal from the conviction imposed by Justice Patricia H. Wallace dated February 14, 2000.

E N D O R S E M E N T

[1] The appellant was convicted of sexual assault with a weapon contrary to s. 271(1)(a) of the Criminal Code and of forcible confinement contrary to s. 279(2) of the Criminal Code and sentenced to 23 months imprisonment. The appellant appeals his conviction and seeks an acquittal on the basis that the verdict was unreasonable or, alternatively, a new trial on the basis of misapprehension of the evidence.

[2] On August 31, 1998, three men abducted the complainant from outside her apartment. She was taken in a car to a wooded area, tied to a pole, sexually assaulted and knocked unconscious. As the complainant was regaining consciousness, she saw the car with the three men drive away. One of the men had a pit bull dog with him in the car. The complainant began to scream until residents near the wooded area heard her at around 9:00 p.m. She was found bloodied, beaten and tied up. The witnesses said that she was petrified “the Ronsons and Morrises” would come back to kill her. The police and an ambulance were called. There was no doubt that a crime had been committed; the issue was identity.

[3] The complainant told the officers that she did not know the identity of the three men. She provided only a general description of her assailants. Two days later, the police presented a photographic line-up of twelve men. The complainant identified the appellant as the driver of the car. At some point, the complainant saw the appellant in the police station foyer and she pointed him out to the police as one of her assailants. She did not tell the police that she knew the appellant.

[4] The appellant told the police that the complainant had known him for six months; that she had met with him before, had seen his car, been in his apartment, and walked with him and his roommate’s pit bull, Brew. He also said the complainant had been given one of Brew’s pups. Two-and-a-half months after the assault, the complainant was re-interviewed and the police took a KGB statement in which she acknowledged that she knew the appellant. At trial, the complainant explained that she did not tell police that she knew the appellant because she was scared at the time and wanted “the whole thing to go away”.

[5] The appellant testified at trial and put forward a defence of alibi. He testified that at the time in question he was either at or near his apartment. As part of his alibi, the appellant testified that on August 31, 1998 he had an appointment with his lawyer at 4:00 p.m. and borrowed his ex-wife’s car at 3:30 p.m. The journey to the lawyer’s office was cancelled when the car started to smoke. He returned home instead and at around 5:30 or 6:00 p.m. one of his friends asked for a ride to the beer store. After driving to the beer store, the appellant testified he returned the car to the parking lot where his ex-wife had left it. Upon returning to his apartment he discovered a number of people had gathered. This was because various people would regularly frequent the appellant’s apartment and engage in the consumption of narcotics. The appellant testified he smoked some marijuana. Then he and his roommate went to the corner store to get cigarettes. At approximately 9:00 p.m. he walked with his roommate and his dog to get a coffee. En route, they waved to Darlene Graves, his ex-wife’s cousin. The appellant testified that after he returned to his home he did not leave until 3:30 or 4:00 a.m. when one of his guests twisted her ankle.

[6] The roommate corroborated the appellant’s version of events. In cross-examination, however, he conceded that the long hours involved in his tobacco farming job made “one day [seem] pretty much the same as the next”. He could not remember what day of the week fell on August 31, 1998, which was the date of the alleged offence.

[7] Darlene Graves testified that she recalled seeing the appellant on the date of the offence between 8:30 and 8:45 p.m. She was not sure if it was August 30 or 31, but she knew it was the Monday she returned to work after her birthday. August 31^st was a Monday. In cross-examination, she testified that she was positive that she had waved to the appellant the night before he had been arrested. But the appellant was arrested on September 3, 1998.

[8] Other witnesses testified in the appellant’s favour but were challenged on cross-examination as to the accuracy of their recollection of dates and times or conflicts with their statements to police.

[9] The trial judge’s reasons for conviction were based on her findings that the complainant was abducted and assaulted between the time of 8:00 and 9:00 p.m. on August 31, 1998. The trial judge instructed herself at the outset that because the accused testified she was required to apply the principles discussed in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).

[10] After assessing the defence evidence, the trial judge held that she did not accept the appellant’s evidence: “Reviewing the entirety of Mr. Simons’ evidence, I simply do not find it credible and I do not believe him. Looking at the balance of the witnesses that he called, there were so many conflicts among them, some of which I have already described, that it is not possible to accept this supportive evidence as credible.” The trial judge also found that given the pattern of “coming and going” in Simons’ apartment and the consumption of drugs, the witnesses were not reliable as to who was in the apartment and on what day.

[11] Turning to the complainant’s evidence, the trial judge noted that there were errors in her evidence that might “cause the court concern in assessing her credibility”. However, the trial judge accepted the complainant’s testimony and the appellant was convicted of sexual assault with a weapon and unlawful confinement.

[12] In R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), Doherty J.A. held that an appellate court should first decide whether the verdict is unreasonable. If it is unreasonable, the appellate court should acquit the accused. If the verdict is not unreasonable, then the court should consider whether the trial judge misapprehended the evidence. If the misapprehension of the evidence played a central role in the trial judge’s reasoning process, a new trial must be ordered.

[13] We are of the opinion that the verdict is unreasonable. While an appellate court must be conscious of the advantages enjoyed by the trier of fact, there is nonetheless a duty to re-examine and to some extent re-weigh the evidence in order to ensure that the verdict is not unreasonable and the conviction does not rest on questionable ground. Eyewitness identification cases are particularly suitable for review by appellate courts. As Justice Doherty noted in R. v. Biddle (1993), 1993 8506 (ON CA), 84 C.C.C. (3d) 430 (Ont. C.A.), at 434-35, rev’d on other grounds (1995), 1995 134 (SCC), 96 C.C.C. (3d) 321 (S.C.C.):

Section 686(1)(a)(i) is often invoked in cases which turn on eyewitness identification evidence. … This is particularly so where the potential probative force of the identification evidence is undermined by improper identification procedures. Resort to the jurisdiction bestowed on this court by s.686(1)(a)(i) in identification cases is a response to the well-recognized danger inherent in convictions based on eyewitness evidence. Furthermore, the assessment of the probative force of eyewitness evidence does not often turn on credibility assessment, but rather on considerations of the totality of the circumstances pertinent to that identification. As such, a verdict based on honest but potentially mistaken eyewitness identification is well suited to appellate review under s.686(1)(a)(i). [Citations omitted.]

In giving the reasons for our conclusion that the verdict is unreasonable, we would first note that the trial judge erred in the manner in which she approached the evidence and some of her misapprehensions of the evidence.

[14] The trial judge erred in the manner in which she addressed the principles discussed in R. v. W.(D.). The trial judge first considered whether she had a reasonable doubt arising from the evidence of the appellant. She concluded that she had none. She then considered the other defence evidence and again found that it did not raise a reasonable doubt. Lastly, she considered the evidence for the Crown and concluded that the Crown had proven its case. While R. v. W.(D.) is helpful, the trial judge considered the evidence of the appellant in isolation from the totality of the evidence. She then considered the evidence of the other defence witnesses and rejected it. By compartmentalizing the evidence at each stage in this fashion, the trial judge fell into error: see R. v. C.(J.) (2000), 2000 1931 (ON CA), 145 C.C.C. (3d) 197. She did not consider whether the evidence as a whole left her with a reasonable doubt as to the guilt of the accused.

[15] The trial judge advanced a number of reasons for rejecting the evidence of the appellant and the other defence witnesses. Some of her reasons and our explanation of her error respecting those reasons follow:

• The appellant had been disabled because he had been doing drugs.

  While the appellant admitted to smoking marijuana on the day in question, there was no evidence that this would have impaired his ability to recollect what he had done on that day;

• The appellant’s evidence was “confirmed or not confirmed by other witnesses”.

  Stephanie Holbeck said that she saw the appellant on his way to get coffee between the relevant times of 8:00 and 9:00 p.m. The trial judge said that this evidence contradicted where the appellant said he was. In fact, that was exactly where the appellant said he was. The trial judge made no finding respecting this witness’s credibility but presumed that she could not have seen the appellant.

  Darlene Graves also testified that she saw the appellant walking his dog. The trial judge found this witness a disinterested, but mistaken, witness because she was mistaken about the date of the appellant’s arrest.

  The more important date was the date Darlene Graves said she saw the appellant – the Monday after her birthday – which was August 31.

• The trial judge found there was a conflict in the evidence between where the appellant said he left the car after using it and where his ex-wife said she picked it up.

  There was no conflict in their evidence.

  The trial judge was critical of the appellant because he said that the car was smoking and he did not tell his ex-wife about this. However, she testified that she was unable to use the car as she planned because it was smoking badly and that she moved it to another parking lot.

• The trial judge drew an unsupportable inference from the expert evidence respecting fibres.

  An expert in fibre evidence was called by the Crown. He testified that it was unlikely that the complainant was in the appellant’s car. Although some of the fibres in the appellant’s car were similar to clothing worn by the complainant on the night in question, one would expect to find more fibres from the complainant’s sheddable blue cotton sweatshirt. There was also a potential problem with transference due to the fact that the complainant had been in the appellant’s apartment and so had her former boyfriend.

• The trial judge misapprehended the evidence of the appellant’s roommate. The trial judge found that he had returned to the apartment at 10:00 p.m. because of a statement he gave to police.

  The roommate did not adopt this statement at trial and clarified that he returned home from his brother’s just after 7:30 p.m. He said he went for coffee around 9:00 p.m. with the appellant and returned with the appellant around 10:00 p.m.

[16] The Crown acknowledges that the trial judge made errors in her reasons, but submits that her misapprehension of the evidence did not occasion a miscarriage of justice or render the trial unfair. We are of the opinion that the cumulative effect of her misapprehension of the evidence was central to the case. Furthermore, the identification evidence in this case displays numerous indicia of unreliability. Having regard to these factors and to the strength of the alibi evidence, we are of the opinion that the conviction is unreasonable.

[17] Accordingly, we would allow the appeal, set aside the conviction and enter an acquittal.

Signed: “Karen M. Weiler J.A.”

“Austin J.A.”

“S. Borins J.A.”