DATE: 20050317

DOCKET: C42574

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – IVAN TITTERTON (Respondent)

BEFORE:

GOUDGE, FELDMAN AND JURIANSZ JJ.A.

COUNSEL:

Leslie Paine

for the Crown, appellant

Joseph Di Luca

for the respondent

HEARD & RELEASED ORALLY:

March 9, 2005

On appeal from the order of the Justice Hugh McLean of the Superior Court of Justice dated September 29, 2004.

E N D O R S E M E N T

[1] In our view the summary conviction appeal judge was in error in finding that the trial judge applied a higher level of scrutiny to the evidence of the defence than to the evidence of the Crown. It is not enough that the larger portion of her reasons was devoted to the basis for her rejection of the defence evidence. There were no irreconcilable findings in her reasons that would warrant the conclusion that she applied a more strenuous level of review to the defence.

[2] It was entirely open to the trial judge to reject the defence evidence on the basis that she did, particularly the bias of the defendant and his adamance about the timing of the incident.

[3] There was a clear basis in the record for her finding concerning the inconsistent defence evidence about the defendant’s position in relation to the lawn mower at the critical time and concerning his consumption of alcohol. Nor was there any relevant problem in the evidence of Ms. Foresta. The same is true of the argued inconsistency between the complainant and her daughter concerning which chair was picked up. The germane fact was that both said the complainant picked up the chair defensively.

[4] This was a case that turned on the credibility assessment of the witnesses at trial. This is the province of the trial judge. Here the trial judge made no reversible error in discharging this task.

[5] Leave is granted, the appeal is allowed and the conviction restored.

"S.T. Goudge J.A."

"K. Feldman J.A."

"R.G. Juriansz J.A."