DATE: 20051118
DOCKET: C42840
COURT OF APPEAL FOR ONTARIO
GOUDGE, ARMSTRONG AND BLAIR JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Anthony De Marco for the appellant
Respondent
- and -
LEWIS JEFFREY
M. David Lepofsky for the Crown, respondent
Appellant
Heard: November 4, 2005
On appeal from the decision of the Summary Conviction Appeal Court dated December 7, 2004 by Justice M. Arthur Gans of the Superior Court of Justice.
BY THE COURT:
[1] The appellant was convicted in the Ontario Court of Justice of assault and uttering a death threat. The complainant was his wife of 18 years. His appeal was dismissed by the Summary Conviction Appeal Court which found that the trial judge gave sufficient reasons for his decision and clearly concluded that the case against the appellant had been proved beyond a reasonable doubt.
[2] We take a different view. This was a simple “he said, she said” case. The trial judge summarized the evidence and then, in one paragraph, found that the appellant’s story, in light of his demeanour, was very clearly absurd and that he must be disbelieved.
[3] Having said that, the trial judge concluded with a single sentence: “I believe the testimony given by [the complainant] and find [the appellant] guilty as charged on both counts”.
[4] The trial judge said nothing in his reasons about why he believed the complainant. Moreover his reasons make no mention of R. v. W.D. (1991) 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), the test it required him to apply, or how he found it to be satisfied in this case. Nor do his reasons make any reference to the burden on the Crown, or whether he found it met in this case.
[5] We agree that the trial judge was not obliged to recite the W.D. formula explicitly. However, in this case we do not think the deficiencies we have referred to can be safely bridged by assumptions about the way the trial judge went about his task.
[6] No doubt, as counsel acknowledged in this court, there were problems with the appellant’s own evidence and the trial judge’s finding that his story was absurd can be taken to satisfy the second step in W.D.
[7] However, the complainant’s story was also not without its difficulties. For example, her evidence of the appellant’s obvious drunken state was inconsistent with that of the police officer who was called to the scene. And her acknowledged anger during one of the two incidents suggested a possible motive to embellish her account.
[8] As Binnie J. said in R. v. Sheppard, 2002 SCC 26, [2002] 162 C.C.C. (3d) 298 (S.C.C.) the fundamental issue at the end of the trial was not credibility but reasonable doubt. Here the trial judge did not explain his basis for believing the complainant despite the difficulties with her evidence, but nonetheless anchored his conclusion entirely in her evidence. Moreover we can see no hint that he addressed the third step in W.D. Had he done either we could determine whether the pathway he took to his conclusion properly addressed the fundamental issue of reasonable doubt.
[9] In the circumstances we simply cannot conclude that this was so and there must therefore be a new trial. The decision of the Summary Conviction Appeal Court must be set aside and a new trial ordered.
RELEASED: November 18, 2005 “STG”
“S.T. Goudge J.A.”
“Robert P. Armstrong J.A.”
“Robert A. Blair J.A.”