DATE: 20040721

DOCKET: C39535

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – MICHAEL MORTENSEN (Appellant)

BEFORE: WEILER, SHARPE and SIMMONS JJ.A.

COUNSEL: Timothy E. Breen for the appellant Alex Hrybinsky for the respondent

HEARD: July 15, 2004

On appeal from the conviction and sentenced imposed by Justice Margaret P. Eberhard of the Superior Court of Justice dated June 25 and November 4, 2002.

E N D O R S E M E N T

[1] In our view, the reasons of the trial judge reveal reversible error on the application of the burden of proof.

[2] The appellant was charged with sexual assault and sexual interference. The Crown called the complainant and an investigating police officer and the appellant testified on his own behalf denying the allegations. The case presented a straightforward conflict between the evidence of the complainant who testified that the appellant had sexually assaulted her and that of the appellant who denied her accusation. The trial judge, sitting without a jury, convicted the appellant on both counts. She described the evidence of the complainant as “thin and lifeless” and “sparse and unadorned”. She compared the complainant’s evidence to the appellant’s exculpatory statement to the police and said that both positions were “plausible”. She then considered the appellant’s evidence at trial. She described it as confused and inconsistent and found that she could not accept it. She described the Crown’s case as “sufficient”. However, at no time did she make an explicit finding that she accepted the complainant’s evidence or that the Crown’s case was sufficiently compelling to convince her of the guilt of the accused beyond a reasonable doubt. The trial judge correctly set out the test from R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) early on in her reasons. However, when she came to apply it to the facts of the case, she never reached the third step.

[1] At the point in her reasons where one would have expected to find consideration of the third step of R. v. W.(D.), she stated: “However, the evidence supporting the position of Mr. Mortensen does not give me a reasonable doubt that [the complainant’s] evidence is not true. Therefore, the burden is met and I find Mr. Mortensen guilty as charged.” This plainly misstates R. v. W.(D.) and suggests a reversal of the burden of proof to the accused to disprove the truth of the complainant’s evidence.

[2] We would, therefore, allow the appeal and set aside the conviction.

[3] We do not agree that the appropriate remedy here is an acquittal. This case is distinguishable from R. v. Levy (1991), 62 C.C.C. (3d) 97 (Ont. C.A.) where the trial judge made a finding that, before considering the accused’s evidence, there was a reasonable doubt on the evidence: “Is there proof beyond a reasonable doubt at this stage? In my view, there is not. Then we go further to the accused’s evidence.” We do not accept the submission that the trail judge’s reasons can be fairly read as having made a statement to that effect in this case.

[4] Accordingly, we would direct a new trial.

“K.M. Weiler J.A.”

“Robert J. Sharpe J.A.”

“J.M. Simmons J.A.”