DATE: 20011115 DOCKET: C36276
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Applicant/Appellant) v. EVERTON WILLIAMS (Respondent)
BEFORE:
DOHERTY, CHARRON and MACPHERSON JJ.A.
COUNSEL:
Benita Wassenaar
for the appellant
Munyonzwe Hamalengwa
for the respondent
HEARD:
November 13, 2001
RELEASED ORALLY:
November 13, 2001
On appeal from the judgment of Judge J. Ritchie dated March 30, 2001.
E N D O R S E M E N T
[1] The trial judge convicted the respondent of sexual assault and assault with a weapon. The summary conviction appeal court reversed and acquitted on both counts. The Crown seeks leave to appeal.
[2] The trial judge began his brief reasons by outlining the two charges. After reviewing the evidence in summary form and addressing the central issue of credibility and the burden of proof, the trial judge concluded that “the Crown has proven all elements of the offences beyond a reasonable doubt”.
[3] The trial judge’s failure to expressly address each count separately, and each element of the offence in each count separately, does not in the circumstances of this case amount to an error in law, and did not result in a miscarriage of justice. The two counts were inexorably linked so that a finding against the respondent on one would almost inevitably compel a finding against him on the other. The summary conviction appeal court judge erred in law in holding that the failure to expressly distinguish between the elements of the offences amounted to reversible error.
[4] Nor are we convinced that the trial judge’s reasons, while brief, support the contention that he failed to consider each of the counts separately. The trial judge properly observed that credibility was the key issue. Reliability in the sense of the accuracy of the complainant’s evidence was not the issue. It was not argued at trial that she was mistaken. It was argued at trial that she was lying. The trial judge’s brief reasons demonstrated an appreciation of the competing version of events and a recognition that the complainant’s version was supported to some extent by independent confirmatory evidence. His reasons leave no doubt as to why he reached the result he did.
[5] While the summary conviction appeal court judge was entitled to conduct a limited assessment of the complainant’s credibility, his unexplained characterization of her evidence as “so unusual and inherently improbable” is not justified on this record. No doubt, on the complainant’s version she acted foolishly and was slow to appreciate the danger that she was in when she was with the respondent. There is, however, nothing inherently improbable in her description of the relevant events, particularly when viewed in combination with the uncontradicted evidence of the 9-1-1 call and the observations of the police officer who responded to that call.
[6] Leave to appeal is granted, the appeal is allowed, the acquittals are set aside and the convictions are restored. The respondent has already served the sentence.
“Doherty J.A.”
“Louise Charron J.A.”
“J.C. MacPherson J.A.”