DATE: 20060419

DOCKET: C44192

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CURTIS WINT (Appellant)

BEFORE:

SIMMONS, CRONK AND LANG JJ.A.

COUNSEL:

Catherine Glaister

for the appellant

Leslie Paine

for the respondent

HEARD & ENDORSED:

April 10, 2006

On appeal from the conviction entered by Justice John P. Kerr of the Ontario Court of Justice dated May 27, 2005 and from the sentence imposed by Justice Kerr dated June 21, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, this appeal must be allowed. As we read his reasons, in assessing the complainant’s credibility, the trial judge placed considerable emphasis on the complainant’s demeanour in breaking into tears during the course of his testimony. On our review of the record, it is clear that the complainant’s emotional display related to questions concerning an alleged threat against his mother. When this issue arose, both in examination-in-chief and in cross-examination, the trial judge expressed the view that as threats against the complainant’s mother were not part of the subject matter of the charges against the appellant it was unnecessary to explore the issue. Accordingly, it was not pursued further by counsel. Having thus precluded the receipt of evidence on this issue, it was unfair to then rely on the complainant’s emotional display in assessing the complainant’s credibility. In the circumstances, the trial judge effectively deprived the appellant of the opportunity to make full answer and defence. Accordingly, the conviction appeal is allowed and a new trial is ordered.

[2] In exercising its discretion concerning whether to proceed with a new trial, we trust that the Crown will consider that when given proper credit for pre-sentence custody, the appellant has served an effective sentence of 10½ months imprisonment