DATE: 20060117
DOCKET: C42405
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – FEARON, RICHARD CRAIG (Appellant)
BEFORE:
DOHERTY, SHARPE and JURIANSZ JJ.A.
COUNSEL:
Christopher Hicks
for the appellant
Roger A. Pinnock
for the respondent
HEARD & RELEASED ORALLY:
January 13, 2006
On appeal from the conviction entered by Justice J.J. Belobradic of the Ontario Court of Justice on May 13, 2004, and the sentence imposed on May 27, 2004.
E N D O R S E M E N T
[1] The trial judge’s reasons are inadequate and fail to articulate a satisfactory basis for this conviction for sexual assault. As the trial judge noted, the complainant’s credibility was the central issue. However, the trial judge failed to deal with crucial points undermining the complainant’s evidence. The trial judge identified, as an important point of contention, the timing as to when the complainant started to cry after returning from her encounter with the appellant. If, as Ms. Martin testified, the complainant only started to cry after Ms. Martin confronted her about why she had been gone so long, that was evidence supporting the defence’s position that the sex had been consensual. Although the trial judge stated this was a point needing consideration, he never resolved it. Nor did he deal with the evidence suggesting that the complainant and the appellant had been on friendlier terms than the complainant was prepared to admit, including evidence that she had visited him and spoke to him on the phone many times.
[2] These contentious points, found in the evidence adduced by the Crown, should have been addressed and resolved by the trial judge to explain why he accepted the complainant’s version. In the absence of any explanation in the trial judge’s reasons as to what he did or did not accept as to these contentious points, the appellant is left in the position of not having an adequate explanation of the reason for his conviction.
[3] Accordingly, the appeal is allowed, the conviction is set aside and a new trial is ordered.