W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20041005

DOCKET: C40855

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) -and- BILE WARSAME DORE (Appellant)

BEFORE: LABROSSE, LASKIN and LANG JJ.A.

COUNSEL: Patrick Leckey for the appellant

Jennifer Woollcombe for the respondent

HEARD: October 1, 2004

RELEASED ORALLY: October 1, 2004

On appeal from the conviction entered by Justice S.W. Long of the Ontario Court of Justice on April 22, 2002.

E N D O R S E M E N T

[1] The appellant was convicted in the Ontario Court of Justice of sexual assault and his summary conviction appeal was dismissed.

[2] The complainant was confined to a wheelchair as she has cerebral palsy spastic quadriplegia. On November 24, 1999, the complainant was a passenger in a taxi contracted by Wheel-Trans and operated by the appellant. She alleged that the appellant engaged in sexual talk with her and then sexually assaulted her in the taxi. The appellant testified and denied the allegations. The complainant and the appellant were the only witnesses in the trial.

[3] The sole ground of appeal is that the reasons for disbelieving the appellant are inadequate in light of the decision in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.). We agree and would allow the appeal.

[4] In his reasons, the trial judge reviewed the evidence of the two witnesses and cited the three-prong test in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). The trial judge then said that he found "the evidence of the accused incredible". In other words, the trial judge found the accused to be "incredible" based on the complainant's believability. This approach ignores the burden of proof.

[5] The case for the Crown was not overwhelming. There were no independent witnesses and no confirmatory evidence of the complainant's allegations. There was nothing "incredible" about the appellant's evidence. He simply denied the allegations.

[6] The conclusion of the trial judge that "[I]f there is any conflict between her evidence and that of the accused as to what happened, I accept without hesitation her evidence" is not a reasoned explanation for rejecting the appellant's evidence. This conclusion is simply conclusory and generic. The accused was entitled to know why he was disbelieved and why his evidence did not raise a reasonable doubt.

[7] In dismissing the appeal, the summary conviction appeal court judge stated that it would have been "preferable to have a more detailed set of reasons from the trial judge articulating (a) why he rejected the evidence of the accused; and (b) that the evidence of the accused did not give rise to a reasonable doubt." We go farther. In this case, the trial judge had a duty to give reasoned reasons for rejecting the appellant's evidence. The failure to give such reasons is an error of law which warrants a new trial. See R. v. Maharaj (2004), 2004 39045 (ON CA), 186 C.C.C. (3d) 247.

[8] Accordingly, the appeal is allowed and a new trial is ordered.

Signed: "J.-M. Labrosse J.A."

"John Laskin J.A."

"S.E. Lang J.A."