Court File and Parties

CITATION: R. v. Legault, 2009 ONCA 86

DATE: 20090129

DOCKET: C44754

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wallace Legault

Appellant

Counsel:

Richard Posner, for the appellant

Elise Nakelsky, for the respondent

Heard and released orally: January 20, 2009

On appeal from the conviction entered by Justice C. Marchand of the Superior Court of Justice on October 7, 2005.

Endorsement

[1] Of the various grounds of appeal raised by the appellant in support of his conviction appeal, we find it necessary to address only one. The appellant argues that the trial judge erred in relying on the demeanour of three Crown witnesses during their trial testimony as a basis for inferring that the appellant was a perpetrator in the attack on the complainant.

[2] In his relatively short reasons, the trial judge referred extensively to the demeanour of the three witnesses and their reluctance to speak on the issue of the identity of the complainant’s assailant to support the inference, which the trial judge drew, that the witnesses were “all in terrible fear” of the appellant. The trial judge also indicated that because of this fear, the witnesses were “unwilling to identify” the appellant. The implication of these statements is that, but for the witnesses’ fear of the appellant, they would have been willing to identify him as one of the complainant’s assailants.

[3] This was an error. Faced with the failure by the witnesses to identify the appellant, it was not open to the trial judge to infer evidence of a positive identification of the appellant by the witnesses. The Crown has not satisfied us that but for this imper-missible reasoning, the verdict would necessarily have been the same. Accordingly, the conviction cannot stand and a new trial is required.

[4] The appeal against conviction is allowed and a new trial is ordered.

“M. Rosenberg J.A.”

“K. Feldman J.A.”

“E.A. Cronk J.A.”