DATE: 20060317

DOCKET: C41348

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. NORMAN NEWTON (Appellant)

BEFORE: DOHERTY, MOLDAVER and LAFORME JJ.A.

COUNSEL: Craig Parry for the appellant

Joseph Perfetto for the respondent

HEARD: March 13, 2006 RELEASED ORALLY: March 13, 2006

On appeal from the order of Justice L.C. Templeton of the Summary Conviction Appeal Court dated July 3, 2003, dismissing the appeal from the conviction entered by Justice K. McGowan of the Court of Justice dated September 25, 2002.

E N D O R S E M E N T

[1] The appellant applies for leave to appeal from the order of the Summary Conviction Appeal Court dismissing his appeal from his conviction on a charge of dangerous driving. The appellant unsuccessfully advanced several grounds of appeal before the Summary Conviction Appeal Court. He renews those arguments on this application.

[2] Many of the appellant’s arguments, although framed in terms of a misapprehension of the evidence and/or a reversal of the burden of proof, essentially come down to a claim that the trial judge and the Summary Conviction Appeal Court judge failed to adequately address what appellate counsel says are significant inconsistencies or “logical frailties” in the evidence of the two principal Crown witnesses. None of these significant inconsistencies were mentioned in defence counsel’s closing argument.

[3] Attacks on the adequacy of trial judges’ reasons have become routine on appeals in criminal matters. Many of these challenges proceed on the premise that if counsel for the appellant can point to any piece of evidence that may have assisted the accused, or any inference that may have assisted the accused, or any legal argument that may have assisted the accused which was not specifically alluded to by the trial judge, it follows that the reasons are inadequate. This premise could not be more wrong. Reasons for judgment must clearly tell the losing party why he or she lost and must provide for meaningful review. If those ends are met, any shortcomings in the reasons are not per se cause for reversal.

[4] There is no obligation on the trial judge to answer each and every argument made by counsel in reasons for judgment. This was a simple, factual case which turned exclusively on the credibility of three witnesses, the two complainants and the appellant. The trial judge’s reasons amply demonstrate that she understood the significance of the credibility issue, fully addressed the relevant evidence, and made the necessary credibility findings. She also expressly referred to and applied the correct burden of proof.

[5] The appellant also argued that the trial judge erred in law when she approached the evidence in a different order than the order set out in the model trial judgment provided in R. v. W.(D.) (1994), 1994 SCC 76, 93 C.C.C. (3d) 1. This oft repeated model instruction in R. v. W.(D) is directed at ensuring a proper application of the burden of proof when the accused testifies. To hold that R. v. W.(D.) requires as a matter of law that triers of fact address the evidence in a certain pre-ordained order would constitute a triumph of empty formalism over substance. In R. v. W.(D.), the issue was not the proper order in which to address evidence, but rather how the trier of fact should apply the burden of proof to the totality of the evidence when an accused testifies.

[6] We also see no error in the Summary Conviction Appeal Court’s determination that the trial judge applied the proper legal test in determining that the appellant’s conduct amounted to dangerous driving. The appellant’s argument that the trial judge misdirected herself rests on a single phrase used by the trial judge after she had already made the finding that the applicant’s driving constituted a “shocking and significant” departure from the standard of care of the normal driver.

[7] Finally, we see no merit in the submission that the appellant’s failure to appreciate how close he was to the vehicle, if in fact that was the case, could some how negative the fault component of the offence of dangerous driving. If anything, such inadvertence would constitute inculpatory evidence on that charge.

[8] Leave to appeal is granted and the appeal is dismissed.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“H.S. LaForme J.A.”