DATE: 20040115

DOCKET: C39879

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – GAVIN WARD (Appellant)

BEFORE: DOHERTY, MACPHERSON and SIMMONS JJ.A.

COUNSEL: David E. Harris for the appellant

Melissa Ragsdale for the respondent

HEARD: January 8, 2004

RELEASED ORALLY: January 8, 2004

On appeal from the conviction of Justice John F. McGarry of the Superior Court of Justice dated December 10, 2002.

E N D O R S E M E N T

[1] This was essentially a two-witness case. The complainant testified that the appellant pushed her off the roof. The appellant testified that the complainant fell off the roof. After reviewing the evidence the trial judge said:

When reviewing the evidence, I came to the conclusion that the evidence of the complainant was acceptable when compared to that of the accused. I do so having considered a number of matters which have the ring of truth and that, in my mind, relates particularly to the events as she described them on the roof concerning the son and his concern about the son and as indicated by the Crown, this may well have pushed a button in the accused’s mind.

In listening to her evidence and I watched her extremely closely. Due to her background, I was concerned with regard to her credibility, and in my view she was not trying to minimize the issues which were against her in that she acknowledges having had a fight with the accused; that she has attempted to stab him, and accordingly I find that when comparing the two and in making a decision as to who I believe between the accused and the complainant, I accept the complainant’s evidence without hesitation. [emphasis added]

[2] Later in his reasons, the trial judge said:

Thus, in making a decision as to the accused’s evidence I am satisfied that not only do I not believe his evidence, but it does not raise a reasonable doubt.

[3] The trial judge made two discrete but related errors. First of all, he determined credibility on an either/or basis and by comparing the evidence of the two main witnesses. The trial judge did not appear to recognize that he was not obliged to accept the credibility of either witness. Secondly, the trial judge never considered whether despite his complete rejection of the appellant’s evidence and his acceptance of the complainant’s credibility, he was satisfied beyond a reasonable doubt of the appellant’s guilt based on the complainant’s evidence. Given the evidence in this case, there was a real possibility that the complainant, though credible, could not carry the entire burden of the Crown’s case.

[4] These errors necessitate the quashing of the conviction. The appeal is allowed. The conviction is quashed and a new trial is ordered.

“D.H. Doherty J.A.”

“J.C. MacPherson J.A.”

“J.M. Simmons J.A.”