DATE: 20050826

DOCKET: C40549

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JOHN KING (Appellant)

BEFORE:

McMURTRY C.J.O., BLAIR. J.A. and KOZAK J. (ad hoc)

COUNSEL:

Philip Campbell

for the appellant

Feroza Bhabha

for the respondent

HEARD& RELEASED ORALLY:

August 23, 2005

E N D O R S E M E N T

[1] The appellant was charged and convicted of sexual touching of a child under the age of fourteen. He was also charged with sexual assault but was acquitted on that charge. In our view, a new trial must be ordered.

[2] It is not necessary to deal with the appellant’s arguments concerning the admission of the complainant’s video taped statement or concerning the trial judge’s reliance on the prior consistent statements of the complainant because, in our view, the trial judge’s reasons for disbelieving the appellant demonstrate a misapprehension of the evidence on key points and an overemphasis on irrelevant considerations, requiring a new trial. The trial judge was wrong in saying that the appellant did not say the impugned conduct did not happen; the appellant said, “No, I didn’t do it”. The trial judge said that the appellant confirmed the complainant would have no motive to lie; leaving aside the impropriety of such a question (which was not asked here) the appellant gave no such evidence. The trial said the appellant confirmed that he was drinking on the night in question; but the appellant gave no such evidence, and indeed, his whole defence was that there was “no night in question”. When it came to considering the appellant’s criminal record, which is considerable, the trial judge appears to have focussed on the assault-related convictions rather than those demonstrating a tendency to dishonesty, thus suggesting he may have engaged in improper propensity reasoning.

[3] A trial judge faces a very onerous task in making findings of credibility, particularly in cases of this nature. Indeed the difficulty of this task can hardly be understated. However, the credibility of an accused is a central aspect of the three-pronged exercise outlined in R.W.(D.), (1991), 63 C.C.C. (3d) 397 (S.C.C.). When disbelief is founded on reasoning that misstates the record or is not supported by it a miscarriage of justice may flow if the conviction is allowed to stand.

[4] The appeal must be allowed and a new trial ordered.

“R. McMurtry C.J.O.”

“R.A. Blair J.A.”

“L.C. Kozak J.”