Court of Appeal for Ontario
Citation: R. v. Alldred, 2007 ONCA 635
Date: 20070917
Docket: C45685
Between:
Her Majesty the Queen Respondent
And
Michael Alldred Applicant/Appellant
Before: Simmons, Armstrong and Lang JJ.A.
Counsel: Christopher Hicks for the appellant Roger Shallow for the respondent
Heard and released orally: September 12, 2007
On appeal from the conviction entered by Justice Mary Teresa E. Devlin of the Ontario Court of Justice dated March 27, 2006 and from the sentence imposed by Justice Devlin dated June 26, 2006.
ENDORSEMENT
[1] The appellant was convicted of three counts of assault, two counts of assault with a weapon, one count of possession of a weapon, and two counts of failing to comply with a probation order. In our view, these convictions cannot stand.
[2] All of the counts of assault simpliciter and the count of assault with a weapon in relation to Mr. Smith were dependent to some degree on the statement evidence of Daniel Hackett. We accept the appellant’s submission that the trial judge erred in admitting the statement of Mr. Hackett as past recollection recorded.
[3] In particular, Mr. Hackett was unable to say definitively in his trial testimony that he was telling the truth when he gave his statement to the police officer. Rather, Mr. Hackett simply said that he would have been telling the truth because he did not “generally lie”. Further, Mr. Hackett acknowledged both that he was "smashed" at the time of the relevant events and that the information contained in his statement had been a hot topic of various conversations in which he was involved in the 10 days between the events and the taking of his statement. In these circumstances, the statement did not meet the requirements for admitting past recollection previously recorded: see R. v. Fliss (2002), 2002 SCC 16, 161 C.C.C. (3d) 225 at 63 and 64; and R. v. McBride (1999), 133 C.C.C. (3d) 527 (Ont. C.A.). For the same reason, the statement was not sufficiently reliable to be admitted under the principled exception to the hearsay rule.
[4] The Crown concedes that without the evidence of Mr. Hackett, the assault and assault with a weapon convictions relating to Mr. Smith are unreasonable and that verdicts of acquittal should be entered.
[5] In addition, the trial judge used Mr. Hackett's evidence to corroborate the assault charges relating to both Ms. Reid and Ms. Vogt. Without the statement evidence, there is no corroboration by Mr. Hackett that the appellant assaulted either woman.
[6] Further, in relation to these charges the trial judge failed to make any reference to the evidence of Michael Lenehan, who testified that Ms. Reid was the initial aggressor. In our view, it cannot be said that the verdicts with respect to these counts would necessarily have been the same had the trial judge not relied on Mr. Hackett's statement and had she considered the evidence of Michael Lenehan.
[7] In relation to the assault with a weapon charge relating to Mr. Lowns, the trial judge found Mr. Lowns "saw the [the appellant] hit him in the eye with a pipe.” This, in itself, was a material misapprehension of the evidence because Mr. Lowns testified that he saw only his assailant's lower body. Moreover, the trial judge failed to appreciate that given that Mr. Smith knew the appellant, Mr. Smith's inability to identify the appellant as Mr. Lown’s attacker was evidence that favoured the defence. In the circumstances, in our view there must be a new trial on this count.
[8] The Crown fairly acknowledged that the possession of a weapon conviction cannot stand if the appeal is allowed with respect to the assault with a weapon charges and that the breach of probation convictions cannot stand if the appeals are allowed in relation to the remaining counts.
[9] For these reasons, the appeal is allowed, the convictions are set aside, not guilty verdicts are substituted with respect to the charges involving Mr. Smith and a new trial is ordered with respect to the remaining counts.
“Simmons J.A.”
“Robert P. Armstrong J.A.”
“Susan E. Lang J.A.”