Court File and Parties

Citation: R. v. Swanson, 2007 ONCA 763

Date: 2007-11-07

Docket: C42350

Court of Appeal for Ontario

Moldaver, Sharpe and Blair JJ.A.

Between:

Her Majesty the Queen, Respondent

and

Brian Lee Swanson, Appellant

Counsel:

Mark Halfyard for the appellant

Susan Ficek for the respondent

Heard and endorsed: November 5, 2007

On appeal from conviction entered by Justice John R. McIsaac of the Superior Court of Justice dated March 19, 2004.

Appeal Book Endorsement

[1] This case is troublesome on a number of levels.

[2] We are concerned about several aspects of the trial judge’s analysis, along with the fresh evidence. In the end, we have concluded that there must be a new trial on all counts for which the appellant was convicted.

[3] First, in the absence of any clear or compelling evidence, the trial judge found that the appellant’s ability to recall events was significantly compromised by years of alcohol abuse. That finding, in our view, was highly detrimental to the appellant and it is not supported by the record.

[4] Second, the trial judge in his overall assessment of the complainant JP, found that JP’s bizarre and improbable allegations of sexual abuse at the hands of the appellant were probably true. With her usual candour, Ms. Ficek concedes before us that that finding was unsupported. We agree. Indeed, if anything, the record would suggest that these allegations were likely concocted, particularly in light of the Crown’s concession about the frailties of JP’s claim to a recovered memory.

[5] By finding that JP’s sexual allegations were probably true, the trial judge effectively used the sexual allegations to enhance rather than derogate his overall credibility. In a case such as this, where the Crown’s case was far from overwhelming, that error, in our view, was serious.

[6] Finally, these factors, when considered along with the Crown’s failure to disclose evidence relevant to JP’s mental state and pattern of conduct, raise fairness concerns and lead us, overall, to the view that the appellant is entitled to a new trial on all counts for which he was convicted. We note that several of those counts relate to JP’s aunt. In that regard, the trial judge relied on JP’s evidence to confirm the aunt’s testimony. Given our concerns about JP’s credibility, those counts cannot stand.

[7] In the result, the appeal is allowed, the convictions are set aside and a new trial is ordered on all counts for which the appellant was convicted.

[8] As well, the Crown concedes that the costs order against the appellant on the third party record application cannot stand. Accordingly, that order is set aside.