DATE: 20030630

DOCKET: C39560

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) – and – RICHARD JAMES HEWITT (Respondent)

BEFORE: DOHERTY, MACPHERSON and SHARPE JJ.A.

COUNSEL: Gillian Roberts for the appellant

The respondent in person

HEARD: June 27, 2003

RELEASED ORALLY: June 27, 2003

On appeal from the judgment of Justice Douglas Belch of the Superior Court of Justice dated January 24, 2003.

E N D O R S E M E N T

[1] The Crown applies for leave to appeal the decision of Belch J., sitting as summary conviction appeal court, allowing the respondent’s appeal from his conviction for assault by Wright J. in the Ontario Court of Justice. For the reasons that follow, we grant leave to appeal, allow the appeal and restore the conviction.

[2] This is a case of domestic assault. The respondent and the female complainant had lived together for about a year in a somewhat stormy relationship. The charge against the respondent arose from an early morning altercation concerning which the respondent and the complainant gave very different versions at trial, each essentially claiming to have been the victim of an assault by the other. The police officers who attended in response to the respondent’s call, laid no charges and were called as defence witnesses. However, within a day of the incident, the complainant saw her doctor who was concerned by her injuries and called the police following which charges were laid.

[1] The trial judge accepted the evidence of the complainant and rejected that of the respondent. He found that despite her intoxication and lack of cooperation with the police at the time, the complainant’s version of the incident, “warts and all”, was supported by the injuries she had sustained. The trial judge rejected the evidence of the respondent “as not being capable of raising a reasonable doubt” and found that “on the totality of the evidence” he was “satisfied that the Crown has proved all essential elements beyond a reasonable doubt.”

[2] Before the summary conviction appeal judge, the respondent argued that the verdict was unreasonable, that different standards of scrutiny were applied to the evidence of the respondent and the complainant, and that the trial judge failed to resolve conflicts in the evidence and misapprehended essential portions of the evidence. The appeal judge reviewed the evidence in some detail, noted that the trial judge’s findings of credibility were entitled to “great deference” but also observed that an appeal court was entitled to overturn an unreasonable verdict, even one based on findings of credibility. The key portion of the appeal judge’s reasons read as follows:

Here, two police officers, one a 25 and the other a 21 year veteran of the force, are called not by the Crown but by the defence. One testifies the complainant had not been straightforward with him, the other says she was evasive. Both testify the evidence at the scene was more consistent with the appellant’s evidence than that of the complainant. She is under the influence of alcohol, he is not. She is agitated, he is calm. There is no mention of the police officers’ evidence in the reasons of the trial judge. The injuries to the complainant’s right buttock are singled out and found to be caused by a hand, yet no explanation is offered for the fact that everyone, including the complainant described the right buttock while the photograph is of the left.

I am satisfied the testimony of the police officers raises a reasonable doubt of the guilt of the appellant, and therefore I cannot support the verdict of the trial judge as reasonable.

[3] In our view, the summary conviction appeal judge erred in law by failing to apply the correct standard of review for unreasonable verdict and instead simply substituted his opinion for that of the trial judge. The test is whether the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered. This requires an appellate court to review, analyze, and within the limits of appellate disadvantage, weigh the evidence to ensure that the result “does not conflict with the bulk of judicial experience”. However, it does not permit a de novo assessment of the evidence, and an appellate court may not substitute its own view as to whether or not there is a reasonable doubt, nor interfere as a result of any “vague unease, or lingering or lurking doubt” that it might have: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.). Rather that focus on the reasonableness of the verdict according to this standard, the appeal judge essentially retried the case and substituted his own view that the evidence of the police officers raised a reasonable doubt.

[4] Before us, the respondent submitted that the trial judge made material errors with regard to the evidence, particularly that of Dr. Molot. We are satisfied that the trial judge did not err in this regard.

[5] Accordingly, we grant leave to appeal, allow the appeal and restore the conviction.

“D.H. Doherty J.A”

“James C. MacPherson J.A.”

“Robert J. Sharpe J.A.”