DATE: 20020813 DOCKET: C35558

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) v. JERRY SWEARENGEN (Respondent)

BEFORE:

CATZMAN, DOHERTY and CRONK JJ.A.

COUNSEL:

Tina Yuen

for the appellant

Tanya Kranjc

for the respondent

HEARD:

August 7 and 8, 2002

RELEASED ORALLY:

August 8, 2002

On appeal from the order of Justice J.F. McCartney dated November 17, 2000.

E N D O R S E M E N T

[1] [1] The respondent was convicted of sexual assault. The summary conviction appeal court judge allowed his appeal and ordered a new trial. The Crown seeks leave to appeal and if leave is granted, appeals on a question of law.

[2] [2] The Crown’s case depended entirely on the complainant’s description of the sexual assault. The defence case rested entirely on the respondent’s denial of the sexual assault.

[3] [3] On the summary conviction appeal, it was agreed between counsel in the course of argument that the complainant’s testimony at trial included material assertions that were not contained in the notes a police officer had made of a statement made by the complainant immediately after the alleged assault. No further information concerning these notes was provided to the summary conviction appeal court judge.

[1] [4] On the summary conviction appeal, it was alleged that trial counsel’s failure to cross-examine on the inconsistencies between the notes and the complainant’s testimony, and his failure to call the police officer who made the notes, demonstrated ineffective representation by counsel. Counsel at the summary conviction appeal court [not Ms. Kranjc] made no attempt to lay the proper evidentiary basis for the allegation of ineffective representation by counsel.

[2] [5] In ordering a new trial, the summary conviction appeal court judge made no finding on the allegation of ineffective representation. Instead, applying the criteria set down in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, he decided that the assertion that the officer’s notes were inconsistent with the complainant’s testimony on material matters was sufficient to justify the ordering of a new trial. According to the summary conviction appeal court judge, the fact that there were differences between the notes and the testimony on material matters “could well have affected the trial judge’s decision on credibility”. Since the case turned on credibility, a new trial was necessary.

[3] [6] In our view, the mere fact that the notes taken by the police officer of the complainant’s initial statement are different in material respects from the complainant’s testimony does not, standing alone, warrant a new trial. Differences between the statement and the testimony do not, in and of themselves, provide a basis for the reassessment of the appellant’s credibility. The effect, if any, of the notes on the complainant’s credibility would depend on many factors, including for example, the nature of the notes and the complainant’s response to any alleged inconsistency. None of these factors were explored on the summary conviction appeal. The order of the summary conviction appeal court judge cannot stand.

[4] [7] The respondent seeks to uphold the order setting aside the conviction by adducing further fresh evidence in this court. That evidence is aimed at showing two things, ineffective representation by counsel or a miscarriage of justice flowing from the failure to cross-examine the complainant on her prior statement. We have examined that evidence and are not satisfied that it demonstrates either. In particular, we are not satisfied, even on the basis of the augmented record which has been put before us, that it can be said that evidence concerning the notes taken by the officer could reasonably be expected to have affected the assessment of the complainant’s credibility.

[5] [8] The respondent also advances additional grounds that were argued in the summary conviction appeal court, but not dealt with in the reasons of the summary conviction appeal court judge. We are satisfied that the trial judge did not assess credibility based on demeanour alone. It was but one of various factors considered by the trial judge. We are also not satisfied that the trial judge failed to properly assess the evidence according to the principles in R. v. W.D. We would not give effect to either of these grounds of appeal.

[6] [9] In the result, leave to appeal is granted, the appeal is allowed, the order of the summary conviction appeal court judge is set aside and the conviction is restored. The matter should be remitted to the summary conviction appeal court for consideration of the respondent’s sentence appeal.

“M.A. Catzman J.A.”

“Doherty J.A.”

“E.A. Cronk J.A.”