COURT OF APPEAL FOR ONTARIO

DATE: 20041012 DOCKET: C39113

BEFORE: WEILER, GOUDGE AND BLAIR JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

KENNETH BEAULIEU Appellant

Counsel: Michael Lacy for the appellant Roger A. Pinnock for the respondent

Heard: October 4, 2004

On appeal from the conviction by Justice G. Mahaffy of the Ontario Court of Justice dated February 15, 2002 and on appeal from the sentence imposed by Justice G. Mahaffy dated July 10, 2002.

BY THE COURT:

[1] In a judge alone trial the appellant was convicted of unlawfully confining and assaulting the complainant Nicole Leonard. Both offences arise from events that took place in the complainant’s apartment on September 25, 2001. At trial, the appellant and the complainant gave very different versions of those events, one exculpatory the other inculpatory of the appellant. While there was some independent evidence, the credibility assessments made by the trial judge were central to his decision.

[2] The trial judge rejected the appellant’s evidence and found that it did not raise a reasonable doubt. He concluded that the Crown had proven its case beyond a reasonable doubt and convicted the appellant.

[3] The trial judge based his finding about the appellant’s evidence on several factors. He noted its inconsistency with the complainant’s actions and her demeanour on escaping the house, as independently observed. He then went on to say this:

One of the things that just glares out of the evidence that makes me have no difficulty whatsoever in finding that the accused is misleading the Court in the description of what actually happened in the apartment, is his evidence that when asked in examination in-chief what her reaction was when he put the knife to his chest, she said – he said that, “She was totally emotionless.”

[4] The Crown acknowledges that the trial judge misapprehended the appellant’s evidence in chief in this regard. In chief the appellant did not testify that the complainant was emotionless, but rather that she was tearful.

[5] However, the Crown says that this misapprehension does not reach the threshold of miscarriage of justice described by Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.).

[6] We do not agree. At p. 221 Doherty J.A. said this:

When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge’s verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

[7] Here the trial judge’s disbelief of the appellant is at the core of his reasoning process culminating in conviction. The misapprehended evidence was of great significance to the trial judge in making that adverse credibility finding. The language he used to describe its relative importance to him in that task leaves us with no other conclusion. It was an essential part of the reasoning process he used. The fact that apart from the misapprehended evidence there was ample evidence to support rejection of the appellant’s testimony and to sustain the conviction is, as Morrissey says, of no moment. The conviction of the appellant was not based exclusively on the evidence. Hence he was a victim of a miscarriage of justice and must receive a new trial.

[8] The appeal is allowed and a new trial is ordered.

Released: October 12, 2004 “KMW”

“K.M. Weiler J.A.”

“S.T. Goudge J.A.”

“R.A. Blair J.A.”