DATE: 20050422

DOCKET: C41875

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) v. CARL PETZELT (Respondent)

BEFORE:

DOHERTY, MOLDAVER and GILLESE JJ.A.

COUNSEL:

Karey Katzsch

for the appellant

Gregory Lafontaine

for the respondent

HEARD:

April 19, 2005

RELEASED ORALLY:

April 19, 2005

On appeal from the judgment of Justice A.P. Dilks of the summary conviction appeal court dated April 30, 2004.

E N D O R S E M E N T

[1] We are satisfied that the decision of the summary conviction appeal court should be set aside and the conviction entered at trial restored.

[2] The summary conviction appeal court judge was wrong in holding that the trial judge disregarded completely a “glaring inconsistency” between the complainant’s evidence and her statement to the police. The trial judge described the inconsistency, considered the complainant’s explanation for the inconsistency, and made a finding as to the significance of that inconsistency in his assessment of the complainant’s credibility. This was, of course, part of the trial judge’s function.

[3] Counsel for the respondent acknowledges, as he must, that the trial judge’s determination of the significance of an inconsistency on the credibility of the complainant, like any other matter going to her credibility, must be given considerable deference on appeal. The summary conviction appeal court judge described the complainant’s explanation for the inconsistency as “no real explanation” and as nonsensical. We disagree with the summary conviction appeal court judge. The complainant’s explanation for her equivocal statement to the police concerning her fear of the respondent was an objectively reasonable explanation in the circumstances. Furthermore, in the context of the evidence of this case and the findings made by the trial judge, her explanation made good sense. Certainly, the trial judge was entitled to take the view of the inconsistency between the statement and the testimony that he in fact took.

[4] The summary conviction appeal court judge also concluded that the loss of the videotape of the complainant’s statement to the police prior to the appeal prejudiced the respondent on the appeal and required a new trial.

[5] The loss of an exhibit does not per se require a reversal of a conviction. The appellant must demonstrate that the loss of the exhibit effectively deprived the appellant of a ground of appeal.

[6] Assuming the trial judge did place some reliance on the demeanour of the complainant in the videotape in making his assessment of the significance of the inconsistency, that demeanour was only one of many factors taken into consideration by the trial judge. The trial judge was entitled to take the complainant’s demeanour into consideration. Nothing in the trial record, nothing placed before the summary conviction appeal court judge, and nothing placed before this court lends any credence to a claim that the demeanour of the complainant on the videotape was such that it could undermine the trial judge’s assessment of the significance of the inconsistency to the extent that appellate intervention of the trial judge’s findings would be warranted.

[7] We find no merit in the submission that the alleged inconsistency between the trial judge’s comments on sentencing and his findings in his reasons for conviction warrant reversal of the conviction.

[8] Leave to appeal is granted and the appeal is allowed. The order of a new trial is set aside and the conviction is restored.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“E.E. Gillese J.A.”