DATE: 20030127

DOCKET: C37334

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. WILLIAM JOHN REID (Appellant)

BEFORE: DOHERTY, AUSTIN and MACPHERSON JJ.A.

COUNSEL: Heather Pringle for the appellant Hugh O’Connell and Chris De Sa for the respondent

HEARD: January 21, 2003

RELEASED ORALLY: January 21, 2003

On appeal from the conviction entered by Justice R. Lajoie of the Ontario Court of Justice on October 31, 2001.

E N D O R S E M E N T

[1] The appellant was acquitted on three charges of sexual assault and one charge of trafficking in a narcotic. He was convicted on one count of trafficking in a narcotic. The conviction rested entirely on the evidence of T.M. who testified that the appellant, a cab driver, purchased a small amount of marijuana for her from another cab driver outside of a store called “Mike’s Mart” in Timmins, Ontario.

[2] T.M. was also the complainant on two of the sexual assault charges and gave evidence against the appellant on the third sexual assault charge. She was the only witness on the other trafficking charge as well. The trial judge rejected her evidence on all other counts. In doing so, he accepted the appellant’s position that she had fabricated the sexual assault charges in an effort to avoid paying a debt that she owed to the appellant. Indeed, she had gone so far as to enlist the aid of a friend in her efforts to frame the appellant.

[3] In choosing to accept T.M.’s evidence on the one trafficking charge, the trial judge referred to that evidence as “unchallenged” and noted that the evidence was “detailed”. He made no reference to any specific detail in her evidence that in his view gave this part of her testimony the ring of truth despite his rejection of the rest of her evidence.

[4] The trial judge made no reference to the appellant’s evidence on this count. The appellant denied trafficking in a narcotic on that occasion or any other occasion. He was not cross-examined on this denial.

[5] We are satisfied that the conviction cannot stand. A trier of fact may, of course, believe part of a witness’s evidence even if other parts of that witness’s evidence are found to be unreliable and incredible. However, where that witness is found to have deliberately fabricated a criminal allegation against an accused, we think the trier of fact must have a clear and logical basis for choosing to accept one part of that witness’s testimony having rejected the rest of it. We can find no clear or logical basis for drawing a distinction between this witness’s credibility on the trafficking charge and the credibility of the rest of her evidence.

[6] The trial judge was wrong in describing T.M.’s evidence as unchallenged. She was cross-examined on this allegation. Her evidence was also no more detailed on this allegation than it was on all of the other allegations which she made in the course of her evidence against the appellant. Finally, the trial judge, in our view, should have considered the appellant’s evidence on this count.

[7] In the result, we are satisfied that the conviction was unreasonable in that no reasonable trier of fact, having found T.M. to be incredible on all of the other charges, could have been satisfied of the appellant’s guilt on the trafficking charge based exclusively on T.M.’s evidence.

[8] The appeal is allowed, the conviction is set aside and an acquittal is entered.

“D. Doherty J.A.”

“A. Austin J.A.”

“J.C. MacPherson J.A.”