COURT OF APPEAL FOR ONTARIO

DATE: 20060329

DOCKET: C43701

RE: HER MAJESTY THE QUEEN (Respondent) – and – EARL STEVENS (Appellant)

BEFORE: FELDMAN, JURIANSZ and MacFARLAND JJ.A.

COUNSEL: David North for the appellant Robert Gattrell for the respondent

HEARD & ENDORSED: March 24, 2006

On appeal from conviction by Justice R.N. Fournier of the Ontario Court of Justice dated March 23, 2005 and sentence dated June 15, 2005.

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

[1] The appellant appeals his conviction for sexual interference on two victims ages 11 and 13. Only one of the victims testified. The other was mentally challenged and did not testify. The appellant also did not testify.

[2] In our view, the trial judge made two errors both having to do with the burden of proof. The first is that he viewed the test as whether he believed that the complainant had lied about his story. In other words, as long as the complainant had not lied, the burden of proof was satisfied. The trial judge concluded that he could not find that the complainant was a liar. However, in formulating the issue in that way, the trial judge did not test the evidence of the complainant on the standard of whether his evidence was sufficient to satisfy the burden of proof on the Crown beyond a reasonable doubt.

[3] The second error relates to the first. The trial judge was concerned about convicting the appellant on the uncorroborated evidence of the complainant and therefore looked for corroboration. However, the fact he concluded amounted to corroboration, that is, the conviction of the complainant for a subsequent sexual assault on another child, could not, on the record, amount to corroboration of the stayed offences.

[4] Because of these two errors, the verdict is unsafe. The appeal is therefore allowed and a new trial ordered.