DATE: 20011203
DOCKET: C30238
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– RICHARD SABOURIN (Appellant)
BEFORE:
LASKIN, ROSENBERG and MOLDAVER JJ.A.
COUNSEL:
Richard Sabourin, the appellant in person
Grace Choi, for the respondent
HEARD:
November 26, 2001
RELEASED ORALLY:
November 26, 2001
On appeal from the conviction imposed by Justice Norman M. Karam, without a jury, dated June 4, 1998 and from the sentence imposed by Justice Karam dated July 2, 1998
E N D O R S E M E N T
[1] We have concluded that this appeal must be allowed and a new trial ordered.
[2] The fresh evidence demonstrates that the appellant did not receive effective assistance of counsel and we are satisfied that a miscarriage of justice was occasioned.
[3] Assuming, without deciding, that the fresh evidence would not have been sufficient to lead to exclusion of the statement, that evidence might well have provided an explanation for the inaccuracies in the statement. The trial judge could well have taken a different view of the appellant’s credibility in those circumstances. Trial counsel was unable to provide a reasonable explanation for not calling this evidence. As it was, the trial judge used the statement to undermine the appellant’s credibility at trial and reject crucial parts of his testimony.
[4] Accordingly, the appeal is allowed, the conviction set aside and a new trial ordered. In considering whether to proceed with a new trial, the Crown will no doubt take into account that the appellant has already served the sentence imposed.
Signed: “John Laskin J.A.”
“M. Rosenberg J.A.”
“M.J. Moldaver J.A.”