DATE: 20040209

DOCKET: C38983

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – MELISSA McCLINTOCK (Appellant)

BEFORE: WEILER, LASKIN and FELDMAN JJ.A.

COUNSEL: Timothy E. Breen for the appellant Benita Wassenaar for the respondent

HEARD: February 3, 2004

RELEASED ORALLY: February 3, 2004

On appeal from the order of Justice Edward G. McNeely of the Superior Court of Justice sitting as a summary conviction appeal judge dated October 25, 2002, dismissing the appeal against the conviction entered on November 2, 2000 and varying the sentence imposed on September 14, 2001 by Justice William R. Wolski of the Ontario Court of Justice.

E N D O R S E M E N T

[1] In October 1999 Melissa McClintock went to Cassidy’s Bar on Danforth Avenue where Patricia Banks and Kirsty O’Shea were also present. O’Shea had injuries from a previous weekend, and informed Banks that it was McClintock who had injured her. They told McClintock to leave the bar. McClintock left taking a beer bottle with her. Banks followed her outside. McClintock smashed the beer bottle on a railing and struck Banks in the face with it once. She was charged with assault with a weapon and the Crown proceeded summarily before Justice Wolski of the Ontario Court of Justice. He convicted her and sentenced her to 4 months imprisonment. McClintock appealed. The appeal against conviction was dismissed without reasons, but the appeal against sentence was allowed, and McClintock’s sentence was varied to 90 days intermittent. She has served a total of nine days in custody. She appeals against conviction and sentence.

[2] We are of the opinion that the conviction appeal must succeed because of the combined effect of two errors by the trial judge: his misapprehension of the evidence and his misapplication of W. (D.), [1991] 1 S.C.R. 742.

[3] The trial judge misapprehended the evidence concerning Banks’ threats and the appellant’s state of mind when she left the bar. He minimized the evidence of Banks’ threats to the appellant in the bar by referring to it as name calling and uttering “harsh words”. This was a mischaracterization of Banks’ evidence as Kelly, the bartender, whose evidence the trial judge otherwise accepted, testified in chief that Banks had uttered a threat towards the appellant and said she was “going to get her”.

[4] The trial judge also unjustifiably rejected the evidence of the appellant that she left the bar in fear for her safety. The reason he said she was not in fear when she left was because she left the bar alone and did not wait for her cousin who was with her that night. The cousin testified that he went downstairs to call a taxi and when he could not find a telephone he went to the bar and asked for the police to be called. In these circumstances, the trial judge should not have inferred the appellant was not afraid because she did not wait for her cousin. Instead, having regard to the threat, the evidence is more consistent with the opposite conclusion.

[5] A central issue in the trial was Banks’ motivation in following the appellant outside the bar and whether the appellant acted because she feared she was in danger of imminent bodily harm. The trial judge ignored circumstantial evidence that impacted upon the motivation of Banks and O’Shea.

[6] In addition, as the Crown concedes, the trial judge misstated the burden of proof. He misstated the second branch of the W. (D.) test by employing the wording “could not reasonably be true” in rejecting the appellant’s evidence as opposed to whether he was “left in reasonable doubt” by her evidence.

[7] In the circumstances, the combination of these two errors requires that we order a new trial. Accordingly, the appeal is allowed, the conviction is set aside and a new trial is ordered.

“Karen M. Weiler J.A.”

“John Laskin J.A.”

“K. Feldman J.A.”