DATE: 20050616

DOCKET: C40496

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – SEAN WATT (Appellant)

BEFORE:

SHARPE, JURIANSZ and ROULEAU JJ.A.

COUNSEL:

Joseph Di Luca

for the appellant

Philip Perlmutter

for the respondent

HEARD & RELEASED ORALLY:

June 9, 2005

On appeal from the convictions and sentence imposed by Justice Bruce C. Hawkins of the Superior Court of Justice dated May 5, 2003.

E N D O R S E M E N T

[1] On May 5, 2003, the appellant was convicted after trial by judge alone of three robbery related offences and sentenced to six years imprisonment. He appeals the convictions and seeks leave to appeal the sentence.

[2] The appellant testified in his defence denying any role in the robbery. He was cross-examined at length and maintained his innocence. In his brief reasons, delivered one month after closing submissions, the trial judge made only a passing reference to the fact that the appellant testified. Although the trial judge may have adequately explained why the Crown’s evidence persuaded him of the appellant’s guilt beyond a reasonable doubt, his reasons give no indication why he rejected the appellant’s testimony, nor do they explain why that testimony did not raise a reasonable doubt.

[3] This was not a case where the Crown’s case was overwhelming and unchallenged. In fact, it depended largely upon the testimony of a witness whose evidence the trial judge described as “bordering on disbelief”. Nor was the accused’s testimony obviously incredible. We do not agree with the respondent that in this case the trial judge’s reasoning can be inferred from the closing submissions. Those submissions were made a month before the trial judge gave his reasons and he did not advert to them in his reasons.

[4] On this record, the trial judge’s failure to provide any explanation for why he rejected the appellant’s evidence or why he found that it did not raise a reasonable doubt, is an error of law justifying appellate intervention. A legally necessary link in the chain of reasoning leading to conviction was simply not explained. Simply put, the trial judge’s reasons do not meet the appellant’s entitlement to know why he was convicted. The deficiency in the reasons precludes meaningful appellate review, an error of law that requires us to set aside the convictions and order a new trial: R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.).

[5] Accordingly, the appeal is allowed. The convictions are quashed and a new trial is ordered. In this result, it is unnecessary for us to deal with the appellant’s appeal against sentence.

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”

“Paul S. Rouleau J.A.”