DATE: 20040415
DOCKET: C39186
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – RANDALL CLARK (Appellant)
BEFORE:
ROSENBERG, BORINS and FELDMAN JJ.A.
COUNSEL:
Alexander Fiszauf
for the appellant
Scott Hutchison
for the respondent
HEARD & ENDORSED:
April 13, 2004
On appeal from conviction by Justice James C. Kent of the Superior Court of Justice on June 4, 2002.
A P P E A L B O O K E N D O R S E M E N T
[1] In our view, this appeal must be allowed. The trial judge failed to consider important defence evidence from the appellant’s wife and did not give any reasons for rejecting that evidence, if indeed he did so. We are also concerned by some of the language by the trial judge when he dealt with proof beyond a reasonable doubt.
[2] The trial judge also failed to articulate reasons for accepting the evidence of the complainant beside relying upon her demeanour and overlooked some very problematic aspects of the evidence, including her motive to fabricate and the manner in which the complaints came forward.
[3] We are not however persuaded that on this record the high standard for finding an unreasonable verdict has been met. Accordingly, the appeal is allowed, the conviction set aside and a new trial ordered.
[4] Given the passage of time, the acquittal of the appellant on the second count, the somewhat unsatisfactory nature of the Crown evidence and that the appellant has served the conditional sentence, the Crown may want to consider whether it is in the interests of justice to proceed with a new trial.