DATE: 20060630

DOCKET: C44166

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and PHILLIP BOUDREAULT (Appellant)

BEFORE:

CRONK, BLAIR JJ.A. and THEN J. (ad hoc)

COUNSEL:

Leslie Maunder

for the appellant

Leslie Paine

for the respondent

HEARD:

June 27, 2006

On appeal from convictions entered by Justice Ian M. Gordon of the Superior Court of Justice on charges of assault, aggravated assault and breach of probation.

E N D O R S E M E N T

[1] Mr. Boudreault appeals his convictions for assault and aggravated assault on two broad grounds. First, he submits that the trial judge erred in applying a Vetrovec warning to a key defence witness. Secondly, he contends the trial judge erred by failing to consider separately the evidence with respect to each of the two counts on the indictment.

The Vetrovec Issue

[2] The appellant argues that the trial judge applied a Vetrovec warning to the evidence of Richard Leeson, the key defence witness, by effectively directing himself that it would be dangerous to accept Mr. Leeson’s testimony in the absence of confirmatory evidence. The Crown agrees that, if the trial judge applied a Vetrovec warning to the evidence of Mr. Leeson, this was an error in law. However, the Crown asserts that, properly read, the trial judge’s reasons indicate that this did not occur.

[3] We do not accept the Crown’s submission. The trial judge was clearly entitled to approach Mr. Leeson’s evidence with caution, as is the case with any witness in appropriate circumstances. With respect, however, it appears to us, from the trial judge’s reasons, that he felt a Vetrovec approach was appropriate with respect to a defence witness and, moreover, that he assessed Mr. Leeson’s evidence on the basis that, in the absence of confirmatory evidence – of which he could find none – the evidence was unreliable and could not raise a reasonable doubt. This was at least perilously close to a Vetrovec application, which is not permitted in the context of defence evidence: R v. Tzimopoulos (1986), 29 C.C.C. (3d) 304 at 340 (Ont. C.A.); R v. Chenier (2006), 205 C.C.C. (3d) 333 (Ont. C.A.).

The Separate Counts Issue

[4] Secondly, the appellant argues that the trial judge erred by failing to consider the evidence with respect to each of the two counts on the indictment separately. We did not call on the Crown to respond to this ground of appeal. In our view, the case was presented and argued on the basis that the identification of the appellant as the perpetrator of the offences was the only issue. Moreover, it was the position of both the Crown and defence at trial that the same man attacked both victims. Thus, once the identification issue was resolved, convictions followed on both counts. We would not give effect to this ground of appeal.

The Proviso

[5] In spite of the trial judge’s approach to the defence evidence of Mr. Leeson through the lens of the Vetrovec decision, we are not persuaded that any substantial error or miscarriage of justice occurred in this case.

[6] This was a relatively strong Crown case. One of the victims and an independent witness identified the appellant as the perpetrator and no witness placed Mr. Leeson – who came forward and said it was he who had committed the offences – in the Bar at the relevant time. The independent eyewitness knew both the appellant and Mr. Leeson. He recognized the appellant in the Bar and he recalled words being spoken that implicated the appellant in the assaults. The trial judge was alive to any discrepancies between the testimony of the independent eyewitness and the victims, addressed them appropriately, and came to the conclusion that they did not detract from the witness’ overall credibility, which he found compelling.

[7] Accordingly, we are satisfied that the decision would not have been any different had the Vetrovec error not been made. Therefore, we would apply the provisions of s. 686(1)(b)(iii) of the Criminal Code.

[8] Finally, although the appellant originally also appealed against the sentences imposed, the sentence appeal was not pursued in oral argument save on the basis that, if his conviction appeal was successful on one of the charges, his sentence should be reduced accordingly. In light of our disposition of the conviction appeal, it is unnecessary to address this matter further.

Disposition

[9] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed as well.

“E.A. Cronk J.A.”

“R.A. Blair J.A.”

“Edward Then J. (ad hoc)”