Her Majesty the Queen v. Minuskin [Indexed as: R. v. Minuskin]

68 O.R. (3d) 577

[2003] O.J. No. 5253

Docket No. C39521

Court of Appeal for Ontario

McMurtry C.J.O., Laskin and Rosenberg JJ.A.

December 29, 2003

Criminal law -- Appeals -- Reasons -- Appropriate remedy when reasons on first level of appeal inadequate -- Summary conviction appeal court judge dismissing accused's appeal and simply stating that accused had failed to satisfy him on balance of probabilities that trial judge made judicial errors in his ruling -- Appeal judge's reasons inadequate -- Failure of appeal judge to give adequate reasons constituting error of law -- Crown arguing that case should be remitted to summary conviction appeal court before another judge to rule on accused's grounds raising errors of mixed fact and law and law alone as Court of Appeal's jurisdiction limited to questions of law alone -- Appropriate remedy being for Court of Appeal to consider grounds of appeal that were raised before appeal judge to determine whether any error resulted in substantial wrong or miscarriage of justice -- Trial judge misapprehending evidence and subjecting accused's evidence to different and stricter scrutiny than that of complainant -- Application of proviso in s. 686(1)(b)(iii) of Code inappropriate -- New trial ordered -- Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii).

The accused was convicted of assault. The summary conviction appeal court judge dismissed his appeal, stating simply "I find that the appellant has failed to satisfy me on a balance of probabilities that the learned trial judge made judicial errors in his ruling." The accused appealed.

Held, the appeal should be allowed.

The reasons of the summary appeal court judge were inadequate. The accused had raised several errors of law in his appeal, as well as allegations of misapprehension of the evidence. The failure of the appeal judge to give adequate reasons for dismissing the appeal constituted an error of law. The accused's statutory right of appeal was limited by s. 839 of the Criminal Code to "any ground that involves a question of law alone". The accused was deprived of meaningful appellate review by the Court of Appeal of any such errors by the appeal judge because of the inadequacy of his reasons.

The appropriate remedy was for the Court of Appeal to consider all the grounds of appeal that were raised before the trial judge to determine whether the alleged errors resulted in a substantial wrong or miscarriage of justice.

The trial judge misapprehended the evidence and subjected the accused's evidence to a different and stricter scrutiny than that of the complainant. These errors constituted errors of law. This would not be an appropriate case for the application of the proviso in s. 686(1)(b)(iii) of the Code. It could not be said that the verdict would necessarily have been the same had the trial judge properly directed himself. The error of law by the appeal judge in failing to give adequate reasons prejudiced the accused.

APPEAL by the accused from a judgment of the summary conviction appeal court dismissing an appeal from a conviction.

R. v. Sheppard, [2002] 1 S.C.R. 869, 211 Nfld. & P.E.I.R. 50, 210 D.L.R. (4th) 608, 284 N.R. 342, 633 A.P.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, 2002 SCC 26, [2002] S.C.J. No. 30 (sub nom. R. v. Sheppard (C.)); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, consd [page578] Other cases referred to Fanjoy v. R., 1985 53 (SCC), [1985] 2 S.C.R. 233, 11 O.A.C. 381, 21 D.L.R. (4th) 321, 62 N.R. 253, 21 C.C.C. (3d) 312, 48 C.R. (3d) 113; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 184 D.L.R. (4th) 193, 252 N.R. 204, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1; R. v. Broda (1983), 1983 2133 (SK CA), 25 Sask. R. 37, [1983] 5 W.W.R. 747, 7 C.C.C. (3d) 161 (C.A.); R. v. Brown (2002), 2002 41599 (ON CA), 61 O.R. (3d) 619, 170 C.C.C. (3d) 37, 7 C.R. (6th) 129, [2002] O.J. No. 3882 (QL) (C.A.); R. v. Fergusson, 1961 97 (SCC), [1962] S.C.R. 229, 132 C.C.C. 112, 36 C.R. 271; R. v. McKay, 1953 12 (SCC), [1954] S.C.R. 3, 107 C.C.C. 304, 17 C.R. 412; R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193, 38 C.R. (4th) 4 (C.A.); R. v. Owen, [2003] 1 S.C.R. 779, 225 D.L.R. (4th) 427, 304 N.R. 254, 174 C.C.C. (3d) 1, 2003 SCC 33, 11 C.R. (6th) 226, [2003] S.C.J. No. 31 (QL); R. v. Parker (1994), 1994 8670 (NB CA), 153 N.B.R. (2d) 247, 392 A.P.R. 247, 94 C.C.C. (3d) 190 (C.A.), revg (1994), 1994 17309 (NB KB), 146 N.B.R. (2d) 220, 374 A.P.R. 220 (Q.B.); R. v. Simons, 2001 5581 (ON CA), [2001] O.J. No. 1959 (QL), 146 O.A.C. 48 (C.A.); Savard and Lizotte v. The King (1945), 1945 37 (SCC), [1946] S.C.R. 20, [1946] 3 D.L.R. 468, 85 C.C.C. 254, 1 C.R. 105 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 686(1), (2), (8), 839

Mark J. Sandler, for appellant. Shawn Porter, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- The appellant appeals from the decision of Marchand J. dismissing his summary conviction appeal from a finding of guilt by Kenkel J. on a charge of simple assault. The appellant's principal ground of appeal concerns the adequacy of the reasons provided by the appeal court judge. Those reasons are as follows:

I have heard able and eloquent submissions of both counsel. I find that the appellant has failed to satisfy me on a balance of probabilities that the learned trial judge made judicial errors in his ruling. The appeal is therefore dismissed.

[2] The appellant contends that these reasons are inadequate. They are, he says, like the reasons of the trial judge described in R. v. Brown (2002), 2002 41599 (ON CA), 61 O.R. (3d) 619, 170 C.C.C. (3d) 37 (C.A.), at para. 30"conclusory and generic . . . [bearing] virtually no relation to this accused and this case . . . [and] they could equally apply to any other case on any other charge against any other accused".

[3] I agree with that submission. The appellant had raised several errors of law in his appeal from the summary conviction court as well as allegations of misapprehension of the evidence. In my view, the failure of the appeal judge to give adequate reasons constituted an error of law within the meaning of R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, at para. 46: [page579]

Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention.

(Emphasis added)

[4] The Sheppard decision was applied by the Supreme Court of Canada to the intermediate appellate court in R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, 174 C.C.C. (3d) 1, at para. 60:

To paraphrase R. v. Sheppard . . . at para. 28, if the deficiencies in the reasons of an intermediate appellate court prevent meaningful appellate review of the correctness of its decision in this Court, then an error of law has been committed.

[5] In this court, the appellant's statutory right of appeal is limited by s. 839 of the Criminal Code, R.S.C. 1985, c. C-46 to "any ground that involves a question of law alone". The appellant is deprived of meaningful appellate review by this court of any such errors by the appeal judge because of the inadequacy of his reasons. For example, it is not possible to know whether the appeal judge found errors but applied the proviso in s. 686(1)(b)(iii) of the Criminal Code. It may be that the appeal judge did apply the proviso because of the peculiar use of the phrase "failed to satisfy me on a balance of probabilities that the learned trial judge made judicial errors". The application of the proviso involves a question of law alone: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 184 D.L.R. (4th) 193, at para. 19. In failing to give adequate reasons, the appeal judge deprived the appellant of meaningful appellate review of that issue. He also deprived the appellant of meaningful review by this court of the decision by the appeal judge concerning any errors of law by the trial judge.

[6] Alternatively, the appeal judge may erroneously have applied the proviso to errors other than errors of law as occurred in Fanjoy v. R., 1985 53 (SCC), [1985] 2 S.C.R. 233, 21 D.L.R. (4th) 321. Many of the errors alleged by the appellant, such as the misapprehension of the evidence, fall into the category of mixed fact and law. [page580] See R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.), at pp. 539-40 O.R., pp. 219-20 C.C.C. Where by reason of errors of mixed fact and law a miscarriage of justice occurred, the provisions of s. 686(1)(b)(iii) can have no application. Without reasons from the appeal judge it is not possible to know how the appeal judge dealt with those issues, thus again potentially depriving the appellant of meaningful appellate review.

[7] The question of remedy where the intermediate appellate court has failed to give reasons is a difficult one. The appellant submits that if this court should find there was an error of law because of the inadequacy of the reasons, we should go on to consider all the grounds of appeal that were raised before the appeal judge to determine whether the error resulted in a substantial wrong or miscarriage of justice. He submits that if this court, having made its own review of the trial record, is of the view that there was no reversible error, it should dismiss the appeal. Alternatively, if this court finds reversible error, the appeal should be allowed and a new trial ordered. He does not contend that the verdict is unreasonable and that the charge should therefore be dismissed.

[8] The respondent submits that the appropriate remedy, if this court finds an error of law by the appeal judge, is to remit the matter to the Summary Conviction Appeal Court where another judge of that court can deal with all of the grounds of appeal -- law alone and mixed fact and law. He submits that in this court, the appellant is limited to questions of law alone and thus can only raise errors of law by the appeal judge and trial judge. He submits that this court has no jurisdiction to examine the errors of mixed fact and law allegedly committed by the trial judge.

[9] In my view, the appropriate remedy is that suggested by the appellant. The respondent's submission is not only inimical to judicial economy but fails to recognize that the appeal in this court is from the decision of the appeal judge, not the decision of the trial judge. This court can only decide if the appeal should be allowed by determining whether the error of law by the appeal judge resulted in a substantial wrong or miscarriage of justice. That can only be determined by examining the grounds of appeal raised before the appeal judge. If it is apparent that on the record before the appeal judge the appeal from the trial court was doomed to failure, the appeal judge's error in failing to provide meaningful reasons was of no consequence and the appeal should be dismissed. In my view, this result inevitably follows from Sheppard, at para. 55, where Binnie J. set out a number of propositions, including the following:

Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation in its own reasons is sufficient. There is no need in such a case [page581] for a new trial. The error of law, if it is so found, would be cured under the s. 686(1)(b)(iii) proviso.

[10] In my view, the corollary to this proposition in the intermediate appeal court context of s. 839 of the Criminal Code is that if in its own review of the record the Court of Appeal finds that there was reversible error by the trial judge, it cannot apply the proviso and must order a new trial or dismiss the charge, as the case may be.

[11] In my view, this approach is similar to the approach taken by the Supreme Court of Canada in R. v. McKay, 1953 12 (SCC), [1954] S.C.R. 3, 107 C.C.C. 304, albeit under a different statutory scheme. In that case, the majority of the court having concluded on a Crown appeal that the Court of Appeal erroneously allowed the accused's appeal on a question of law, went on to deal with the other question of appeal that had been raised in, but not dealt with by, the Court of Appeal, including issues that Kerwin J. (dissenting in part) described, at pp. 4-5 S.C.R., pp. 305-06 C.C.C. as issues of fact [See Note 1 at end of document]. Speaking for the majority, at pp. 5-7 S.C.R., p. 307 C.C.C., Fauteux J. dealt with the question as one of remedy. Once the court is seized with jurisdiction because of the error of law in the intermediate appellate court, the Supreme Court must "give the order which justice requires" (referring to Savard and Lizotte v. The King (1945), 1945 37 (SCC), [1946] S.C.R. 20, 85 C.C.C. 254, at p. 265 C.C.C.). He did not think it "consonant with the diligence required in the proper administration of justice in criminal matters" to remit the case to the Court of Appeal to deal with a question that the Supreme Court was in as good a position to determine (at p. 7 S.C.R., p. 308 C.C.C.).

[12] There may well be other cases where the appropriate order is to remit the matter to the summary conviction appeal court for an entirely new hearing, as where the original proceedings in that court were tainted by a reasonable apprehension of bias. See R. v. Parker (1994), 1994 8670 (NB CA), 94 C.C.C. (3d) 190, 153 N.B.R. (2d) 247 (C.A.). For reasons of economy or otherwise, a court of appeal may also wish to remit the matter to the summary conviction appeal court. I am satisfied that a court of appeal would have such a power by the combined operation of ss. 839(2), 686(2) and (8). See R. v. Broda (1983), 1983 2136 (SK CA), 7 C.C.C. (3d) 161, 25 Sask. R. 37 (C.A.), at p. 164 C.C.C.

[13] I therefore turn to the grounds of appeal raised in the appeal court to determine whether the error of law by the appeal [page582] judge resulted in a substantial wrong or miscarriage of justice. I will first briefly review the factual background.

[14] The complainant in this case is 11-year-old Matthew Dennis. The appellant is the stepfather of Matthew's cousin 12- year-old Shira Young. There is a history of difficulties between the appellant, Matthew and Shira. It is clear that Shira has an intense dislike of the appellant. The appellant has had difficulties with Matthew on prior occasions because of the way Matthew treats the appellant's other children and because of at least one act of theft by Matthew.

[15] On the date of the incident that led to the charge, Matthew came to the appellant's home to get Shira. In the ensuing hours, Matthew and Shira returned to the appellant's home on several occasions. On the final occasion, when they returned the front door was locked. Shira knocked on the door while Matthew hung back. According to Matthew, the appellant came to the door and for no reason shoved Shira so that she hit her shoulder hard against a brick wall. Then, for no reason and without saying a word, the appellant grabbed Matthew by the shoulders, lifted his body off the ground and punched him in the stomach with so much force that he was thrown off the veranda and down to the concrete patio steps. The children then went into the backyard through the gate to the backyard fence and took the dog. They went to Matthew's home where Matthew noticed a red mark on his chest. When Matthew's mother returned home a short time later, he showed her the mark. A police officer attended about half [an] hour later but the officer did not see any mark. Shira's version of the altercation at the door was different. She testified that the appellant "twisted" Matthew's stomach and then pushed him out.

[16] The appellant gave a very different version of events. He described a tumultuous morning in which his wife first ordered Matthew out of the house because he was causing chaos with the other children. On one of the occasions when the children returned, they seemed to be letting the air out of his tires and were throwing snowballs at the windows. On the final occasion, when Shira and Matthew came to the door, Shira walked past him into the house. The appellant told Matthew that he could not come in. However, Matthew swore at him and tried to push past him. The appellant put his hand on Matthew's shoulder, turned him around so he was facing outside and Matthew then left. The appellant denied touching Shira or assaulting Matthew. The appellant called character witnesses to testify to his reputation for honesty and integrity and for peacefulness. [page583]

[17] The appellant was originally charged with assaulting both Shira and Matthew. The trial judge dismissed the charge involving Shira.

[18] In his appeal to the summary conviction appeal court, the appellant raised as grounds of appeal that the trial judge erred in reversing the burden of proof, misdirected himself as to the use of character evidence and erred in holding the appellant's evidence to a higher degree of scrutiny than the prosecution's evidence. These grounds involve questions of law alone. The appellant also submitted that the trial judge misapprehended the evidence bearing on Matthew's credibility and the appellant's testimony.

[19] I can briefly deal with the grounds of law. The question of the burden of proof rests upon the following passage from the reasons:

I reject Mr. Minuskin's evidence as to the manner in which he touched his nephew and I do not find that it raises a reasonable doubt. I do not find that the remainder of the defence evidence raises a reasonable doubt.

[20] Mr. Sandler, on behalf of the appellant, does not contend that the use of the word "raises" rather than "leaves" in conjunction with reasonable doubt constitutes reversible error. He does submit, however, that the trial judge's approach was to compartmentalize the defence evidence. He points out that there were important parts of the cross-examination of the prosecution witnesses that lent support to the defence case that may not have been brought into the determination of whether there was a reasonable doubt. He relies on this court's decision in R. v. Simons (2001), 2001 5581 (ON CA), 146 O.A.C. 48, [2001] O.J. No. 1959 (QL) (C.A.).

[21] I agree with this submission. The error by the trial judge rests on a failure to properly apply the decision of the Supreme Court of Canada in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397. In that case, at p. 758 S.C.R., Cory J. set out a model instruction to the jury in a case where credibility was important:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[22] It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to [page584] approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.), at p. 743 S.C.R., the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

[23] I cannot be satisfied that the trial judge approached his task in that manner, because, in my view, he misapprehended important parts of the prosecution evidence that would have assisted the defence and because of his erroneous approach to Matthew's credibility. I will turn to those parts of the appeal after dealing with the other grounds of law.

[24] As to the use of the good character evidence, the trial judge found that this evidence was of little assistance in the case. He stated that there is "no particular pathology . . . to domestic violence, it is often committed by persons of otherwise good character and judgment". The appellant says that while the evidence of peaceful reputation may have been of little use, the trial judge erred in failing to consider the evidence of the appellant's reputation for honesty in judging his credibility. I have reviewed the character evidence. I think it was open to the trial judge to find it was of limited use in this case. While the appellant had a sterling reputation for honesty in the business community the witnesses had limited or no information about his reputation outside that context. The trial judge did not disregard the evidence. The weight to be attached to it was a matter for him as the trier of fact. I see no error of law.

[25] The final ground of appeal raised in the appeal court was that the trial judge applied a different stricter level of scrutiny to the evidence of the appellant than that of the prosecution witnesses, especially Matthew. I agree with this submission. Again, however, this error is tied to the misapprehension of the evidence. I will therefore turn to those aspects of the case.

[26] The appellant testified that his wife told Matthew to leave the house because he was creating chaos. The trial judge considered this "important because the later incident involves a confrontation at the doorway between Mr. Minuskin and Matthew [page585] where Matthew is physically turned around by Mr. Minuskin and sent away from the door". The trial judge went on, however, to say the following:

Oddly, no evidence was called to support the assertion that Matthew was in fact told to leave that morning. Mr. Minuskin was busy with his son and states that he "wasn't paying attention" when Matthew was asked to leave. Ms. Burstein [the appellant's wife] was not called as a witness to testify so there is no evidence before the court to support that statement.

(Emphasis added)

[27] Earlier, the trial judge had stated that the appellant was "later told" that his wife had told Matthew to leave. The Crown concedes that the trial judge misapprehended the evidence. The appellant was not "later told" what his wife said to Matthew. The appellant testified that he heard his wife tell Matthew to leave because he was creating chaos with the other children. Thus, there was admissible evidence, not mere hearsay, from the appellant to support this statement. This error might seem trivial except that it was the trial judge himself who considered it "important". He referred to this part of the case as an important point on two occasions.

[28] I am also troubled by the trial judge's reference to the fact that the appellant's wife was not called to testify on this important point. The trial judge was clear that he did not draw a negative inference from the failure to call Ms. Burstein. However, I am concerned that this is an example of the trial judge using a more exacting standard in judging the appellant's credibility. The appellant was never challenged in cross-examination about this part of his testimony. There would have been no reason for him to think that this part of his story required confirmation from another source, especially from his wife, who all the witnesses agree was away from the house during the final encounter that led to the charges, and from whom the appellant was estranged at the time of the trial.

[29] On two occasions, the trial judge stated that the appellant "says he was calm throughout". However, the trial judge found this odd because when the appellant saw the children throwing snowballs, he called the police and later yelled out that if Matthew came near his car, he would call the police. It is apparent that the trial judge used the appellant's claim that he was calm to find that his testimony was untrue. However, the trial judge misapprehended this part of the evidence. The appellant never testified that he was calm throughout the various encounters that day. The only testimony that the trial judge might have been referring to concerned a very different incident where the appellant called the police because Matthew had stolen a piece of [page586] his property. In that context, the appellant agreed with Crown counsel that he was a very patient man. Again, this might seem like a trivial matter except that the trial judge placed such emphasis on it. I would also point out that the trial judge misapprehended the reason why the appellant called the police. He did so because he thought the children were deflating his tires, not merely because they were throwing snowballs. However, I would attach little importance to this error.

[30] A much more troubling part of the trial judge's reasons is his treatment of Matthew's evidence on the crucial issue of the confrontation at the door. The trial judge said this:

In assessing the testimony of the accused regarding his nephew, I do not find credible his assertion that Matthew Dennis said "fuck you, I'm going in anyway" and tried to force himself past Mr. Minuskin. Matthew Dennis is a small, slight young man, he attends a religious school and appeared in court today well dressed and wearing a yarmulke. Everything about his demeanour suggest that he would be reluctant to swear, must less try to force himself past such a bigger and stronger man. I reject Mr. Minuskin's evidence as to the manner in which he touched his nephew and I do not find that it raises a reasonable doubt. I do not find that the remainder of the defence evidence raises a reasonable doubt.

Matthew Dennis was a very impressive witness. He was intelligent and remarkably accurate for his age. He testified in a forthright manner and with candour. He admitted throwing snowballs at the house and under very thorough cross, freely admitted past negative behaviour when asked.

(Emphasis added)

[31] The fact that the complainant attended a religious school and his manner of appearance in court were no indicia of his credibility. Moreover, the idea that as a result Matthew would be "reluctant to swear" is simply inconsistent with the evidence. While denying that he swore at the appellant on this occasion, Matthew admitted in cross-examination that he had sworn at the appellant on other occasions.

[32] The trial judge's finding that Matthew testified forthrightly and with candour also seems not to be borne out by the evidence. For example, Matthew initially testified that he treated the appellant's other children well. It was only under further cross-examination that he admitted that he did get into fights with them and punched them. Matthew blamed these fights on the appellant's five-year-old daughter. Matthew also adamantly denied talking to Shira about the incident. This was important because Matthew changed his description of the incident from what he initially told the police. It was the theory of the defence that he did so because after talking to Shira and her mother he realized that his initial description was not physically possible. Shira testified that they talked about the incident on several [page587] occasions and she even told Matthew that he was not punched in the stomach. This was an important part of the prosecution case that supported the appellant's position as to Matthew's credibility but was not mentioned by the trial judge.

[33] To conclude, it is my view that the trial judge misapprehended the evidence and the appellant has shown that the errors produced a miscarriage of justice within the meaning of s. 686(1)(a)(iii). Those errors also infected the trial judge's treatment of the burden of proof and led him to subject the appellant's evidence to a different and stricter scrutiny than that of the complainant. These constitute errors of law. This would not be an appropriate case to apply the proviso in s. 686(1)(b)(iii) to cure those errors of law. I cannot say that the verdict would necessarily have been the same had the trial judge properly directed himself. The error of law by the appeal judge in failing to give adequate reasons did prejudice the appellant and the appeal must therefore be allowed.

[34] Accordingly, I would grant leave to appeal, allow the appeal and order a new trial.

Appeal allowed.

Notes

Note 1: The issue was the reasonableness of the verdict. At the time, this was not considered a question of law alone. See for example R. v. Fergusson, 1961 97 (SCC), [1962] S.C.R. 229, 132 C.C.C. 112.