Court File and Parties

CITATION: R. v. Paul, 2010 ONCA 151

DATE: 20100226

DOCKET: C49546

COURT OF APPEAL FOR ONTARIO

Goudge, Juriansz and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Christopher Paul

Appellant

David E. Harris, for the appellant

Peter Scrutton, for the respondent

Heard: February 12, 2010

On appeal from the decision of Justice Mary Hogan of the Ontario Court of Justice dated July 2, 2008.

ENDORSEMENT

[1] The appellant appeals from his conviction for aggravated assault arising out of a fist fight at a Toronto Argonauts football game. He raises a number of grounds of appeal. It will be necessary for the court to deal with only two of them.

[2] First, the appellant says that the trial judge erred in denying him an adjournment requested on the day of trial in order to obtain a transcript relevant to his argument that his s. 11(b) rights under the Charter were breached. The transcript had been ordered by his counsel, but only recently, and after very considerable and unexplained delay. In our view, it was well within the discretion of the trial judge to deny the adjournment in the exercise of her trial management responsibilities. She had good reason for doing so, given the delay in ordering the transcript and the lateness of the request of an adjournment. There is no basis for this court to interfere.

[3] Second, the appellant argues that the trial judge erred in not applying the principles of R. v W.(D.). (1991), 63 C.C.C. (3d) 389 (S.C.C.), but appears to have approached this case as a choice between the evidence of the two participants in the altercation who testified for the Crown, and the evidence of the other two participants, namely the appellant and his friend, who gave evidence for the defence.

[4] The trial judge makes no reference in her reasons to the principles of W.(D.) nor to the principle of reasonable doubt. That of course is not a fatal error. W.(D.) should not be treated as it were an incantation that must be made.

[5] However, on review, the appellate court must be able to be satisfied that these principles were indeed applied. Here, the absence of any express reference to the principles is coupled with a troubling passage at the critical point in the reasons of the trial judge. It allows the clear inference that she believed the two Crown witnesses because she disbelieved the two defence witnesses, one of the very things that the W.(D.) principles proscribe. In the circumstances, we simply cannot be satisfied that the trial judge applied those principles in this case.

[6] The appeal must be allowed, the conviction set aside, and a new trial ordered.

“S.T. Goudge J.A.”

“R.G. Juriansz J.A.”

“David Watt J.A.”