Court of Appeal for Ontario

Citation: R. v. Bayley, 2009 ONCA 490 Date: 2009-06-17 Docket: C48891

Between: Her Majesty the Queen (Respondent) and William Bayley (Appellant)

Before: Doherty, Rosenberg and Gillese JJ.A.

Counsel: Wendy Oughtred, for the appellant Karen Papadopoulos, for the respondent

Heard and orally released: June 3, 2009

On appeal from the conviction entered by Justice T. Wolder of the Ontario Court of Justice dated March 25, 2008 and the sentence imposed on May 13, 2008.

ENDORSEMENT

[1] The appellant was charged with nine offences. Seven of the charges alleged various assaults against his domestic partner, Sherrie Woods. One charge alleged a threat to kill Ms. Woods and one charge alleged a breach of recognizance based on the alleged assaults and threats.

[2] The appellant and Ms. Woods had been involved in an intermittent romantic relationship for many years. Both have had very difficult lives. The relationship had unfortunately become a violent one. Each had assaulted the other on prior occasions.

[3] The nine charges arose out of three incidents. There was an alleged assault in July 2006 in which Ms. Woods claims she was struck with a rolling pin. The Crown did not ultimately seek a conviction on this charge.

[4] The second incident occurred sometime in late September or early October 2006. Ms. Woods claimed that she wanted to leave the house, which she shared with the appellant, to do some painting. He did not want her to go because he was not feeling well. He picked up the dog dish and smashed her hand with it, significantly injuring one of her fingers. This is referred to as the "dog dish" incident. The trial judge convicted on this count.

[5] The third incident occurred in November 2006 and involved a series of alleged assaults in various parts of the house. Ms. Woods testified that the assaults began when the appellant threw a chair at her either grazing her head or narrowly missing her. Subsequently, but on the same day, Ms. Woods testified that there were a number of other assaults involving a hammer and cigarette burns. The trial judge convicted on the assault involving the chair. This was referred to as the "wicker chair" incident.

[6] Counsel for the appellant, in effective submissions, claims that considered in the context of the entirety of the evidence and the acquittals on the other counts, the two convictions are unreasonable. She relies strongly on the trial judge's finding that Ms. Woods' evidence, for a variety of reasons, was incredible and unreliable. Counsel submits that there was nothing in the evidence relating to the two charges on which the trial judge convicted that would justify distinguishing the verdicts on those counts from the acquittals on the other counts. We agree with that submission and will address each count separately.

The "Wicker Chair" Incident

[7] As indicated above, this incident occurred in November 2006 on the same day and either immediately before or shortly before what Ms. Woods testified were a series of serious assaults perpetrated against her by the appellant. The trial judge acquitted on all of those counts. In our view, those acquittals render this conviction unreasonable for the following reasons.

[8] This conviction and the acquittals arose out of what was essentially the same event. Ms. Woods' evidence in respect of the "wicker chair" incident was as inconsistent and confusing as was her evidence in relation to the other allegations. There was no confirmatory evidence in respect of the "wicker chair" incident. The serious concerns with respect to Ms. Woods' credibility, in particular her prior perjury and her proven motive to falsely accuse the appellant, applied to this charge as much as they applied to the other charges. Finally, with respect to the trial judge, he offered no real explanation for distinguishing between the verdict in respect of the "wicker chair" incident and his verdicts on the other charges arising out of the November incident. The conviction arising out of the "wicker chair" incident is unreasonable and must be quashed.

The "Dog Dish" Incident

[9] In convicting on this count, the trial judge relied on the evidence of Ms. Woods' family doctor. Ms. Woods had visited the doctor shortly after the alleged incident. She had an injury to her finger that was not inconsistent with her allegation that the appellant had smashed her hand with the dog dish. The trial judge in convicting on this count noted:

I accept the evidence of Dr. Levasseur that such injuries would not likely have been caused by the complainant as part of any self-harming behaviour.

[10] That opinion, assuming it was an opinion that the doctor was entitled to give, could not support the inference that the appellant was in any way implicated in the injury. It went no further than to indicate that Ms. Woods would not have intentionally injured her hand in that way. It did not, and could not preclude an accidental self-inflicted injury. In our view, the doctor's opinion as to the cause of the injury to Ms. Woods' hand did not provide independent evidence confirming Ms. Woods' allegation that the appellant hit her with the dog dish. Ms. Woods' evidence in respect of the "dog dish" incident was infected by all of the same credibility problems that were evident in the rest of her testimony. We think this verdict was also unreasonable.

Conclusion

[11] The appeal is allowed, the convictions are quashed and acquittals are substituted.

"Doherty J.A."

"M. Rosenberg J.A."

"E.E. Gillese J.A."