DATE: 20050629

DOCKET: C39967

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MICHAEL SIIMAN (Appellant)

BEFORE:

BORINS, FELDMAN and ROULEAU JJ.A.

COUNSEL:

Michael Siiman in person

Leslie Maunder, Duty Counsel

Roger Shallow

for the respondent

HEARD:

June 20, 2005

On appeal from the judgment of Justice Paul J. Cosgrove of the Superior Court of Justice dated April 16, 2003, cited at [2003] O.J. No. 2059 dismissing a summary conviction appeal from the conviction entered by Justice S.J. Hunter of the Ontario Court of Justice dated July 17, 2001.

E N D O R S E M E N T

[1] On July 17, 2001, the appellant was found guilty of assaulting his mother-in-law and father-in-law. The trial judge suspended sentence and placed the appellant on probation. The assault was found to have occurred on June 5, 2000, following an argument between the appellant and his father-in-law over the way the appellant had barbecued steaks at a family dinner.

[2] The appellant appealed his conviction and on April 16, 2003, the Summary Conviction Appeal Court judge dismissed the appeal. The appellant now seeks leave to appeal and, if granted, appeals to this court. He also seeks to file a voluminous amount of fresh evidence consisting principally of an alleged recantation by the Crown’s principal witness at trial, the appellant’s father-in-law, and testimony by the appellant’s spouse, who is said to have witnessed all or part of the incident, but who did not testify at trial.

Issues

[3] The appellant pursued three grounds of appeal both in this court and before the Summary Conviction Appeal Court judge. They are as follows: (1) in reaching his decision, the trial judge engaged in forbidden propensity reasoning by considering the appellant’s demeanour throughout the trial; (2) the trial judge did not deal with the self-defence issue in his reasons and, specifically, did not consider the evidence of self-defence as disclosed by the testimony of a Crown witness; and (3) the trial judge erred in his finding and use of post-offence conduct by the appellant.

[4] The appellant maintains that the Summary Conviction Appeal Court judge’s rejection of each of these grounds of appeal was an error of law, and that leave to appeal to this court ought to be granted. The appellant further submits that, based on the record at trial and the consideration of the fresh evidence being tendered, this court should enter an acquittal on all charges.

Analysis

[5] We will first deal with the submission that the trial judge erred in both the finding and the use of post-offence conduct.

[6] The trial judge found as a fact that, following the collision between the appellant and his mother-in-law, Mrs. Wilson, the appellant did not offer an apology. This post-offence conduct was then used by the judge to assess whether the contact between the appellant and his mother-in-law was accidental or intentional, and, therefore an assault. In rejecting the appellant’s evidence that the contact was accidental, the trial judge stated (at p. 188 of the transcript) as follows:

Now some significance in that respect as well is the fact that neither Mr. Siiman nor Mrs. Wilson offered any evidence that there was any apology for such an accidental collision.

[7] In the course of submissions, the Crown conceded that both Mr. Siiman and Mrs. Wilson testified at trial about the collision but that neither was asked whether the appellant apologized after the collision and subsequent fall of Mrs. Wilson and that, therefore, the trial judge was in error in his finding and in employing this finding in reaching his verdict of guilt. It follows that the Summary Conviction Appeal Court judge also erred in finding that there was no substance to this ground of appeal.

[8] The Crown argued that from a review of the record, we should conclude that the evidence was overwhelming and that we should apply the curative proviso in s. 686 (1)(b) of the Criminal Code. The Crown submits that, taking the reasons as a whole, the trial judge’s error is of little consequence.

[9] We do not agree. The trial judge’s finding concerning the absence of an apology and his subsequent use of this finding go to the appellant’s credibility generally and to the appellant’s intent, a critical element of the offence of assault. The Crown’s case was not a strong one. On this record, we cannot conclude that, absent this error, the trial judge would have rejected the appellant’s evidence or, at a minimum, would not have been left with a reasonable doubt. As a result, we do not consider that this is an appropriate case to apply the proviso.

[10] We also disagree with the remedy proposed by the appellant. Even if the appeal were allowed on all three grounds and the fresh evidence were to be admitted, there remains evidence on which a trial judge could convict the appellant, depending on findings of credibility.

[11] In light of our decision on the issue of post-offence conduct, it is not necessary to deal with the other grounds of appeal, nor with the appellant’s motion to file fresh evidence.

[12] In the result, we grant leave to appeal, allow the appeal and order a new trial. It will be up to the Crown to decide if, in the circumstances, a new trial is in the public interest.

“S. Borins J.A.”

“K.N. Feldman J.A.”

“P.S. Rouleau J.A.”