DATE: 20040130

DOCKET: C39341

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – RAYMOND DASTOUS (Appellant)

BEFORE:

ABELLA, GOUDGE and GILLESE JJ.A.

COUNSEL:

Robert J. Upsdell

for the appellant

Shawn Porter

for the respondent

HEARD:

January 27, 2004

On appeal from the conviction entered by Justice John L. Menzies on November 6, 2002.

E N D O R S E M E N T

[1] Charges were laid after an altercation between the appellant and his former employer. At trial, the appellant was found guilty of assault, uttering a death threat, attempting to choke with the intent to commit an indictable offence and extortion. The trial judge’s reasons for judgment consist of 5 paragraphs that run just slightly over a page in length.

[2] After acknowledging that there was “a total conflict” between the version of events offered by the complainant as opposed to that offered by the appellant, the trial judge stated:

… I agree with the submissions of the Crown, I adopt all of the Crown’s submissions. Her submissions are to be deemed [to be] part and parcel of these brief reasons.

[3] This court has noted the dangers inherent in simply adopting the Crown’s submissions in their entirety and cautioned against following such a process, saying that it “should generally be avoided because of the legitimate miscarriage of justice concerns it raises”. See R. v. Gaudet (1998), 125 C.C.C. (3d) 17 at para. 55.

[4] The dangers associated with simply adopting the Crown’s submissions are realized in the instant case. The Crown submitted that the alleged threat by the appellant occurred as the appellant was choking the complainant. This appears to have been an error. In the Crown’s submissions, the marks on the complainant’s neck were said to be “consistent with a choking pattern”. In our view, the marks appear to be consistent as well with the appellant’s testimony as to how the complainant came to receive such marks. The trial judge states “I agree with the Crown’s submission, for example, that the injuries … are wholly consistent with the theory of the Crown, and wholly inconsistent with the theory of the defence”. The Crown did not make the latter submission. In addition to misquoting the Crown’s submission on that point, the trial judge appears to have misapprehended the evidence since the injuries could not be said to be wholly inconsistent with the appellant’s evidence.

[5] Moreover, the reasons are insufficient. We are unable to perform a meaningful review of the reasons as they do not identify the important issues nor do they provide reasons for the conclusions reached. See R. v. Sheppard (2002), 162 C.C.C. (S.C.C.). For example, it appears that the trial judge based his decision on a preference for the complainant’s evidence over that of the appellant. However, he began by saying: “Notwithstanding the tone of the audiotape, I am prepared to accept the evidence of the complainant”. He concluded that “a good deal of it [the appellant’s evidence] did not really make sense” but gives no reasons for that conclusion. As the case hinged largely on credibility, the trial judge was obliged to give reasons for rejecting the appellant’s evidence, particularly when he prefaced his acceptance of the complainant’s testimony with the words “Notwithstanding the tone of the audiotape”, which suggest to us that the audiotape raised a question in the trial judge’s mind about what transpired in the altercation.

[6] Furthermore, it appears that the trial judge, having adopted the Crown’s submission that the outcome of the case turned on choosing one version or the other, based his decision on a credibility contest between the appellant and the complainant.

[7] For these reasons, the appeal is allowed and the matter remitted for a new trial.

“R. S. Abella J.A.”

“S. T. Goudge J.A.”

“E. E. Gillese J.A.”