Court of Appeal for Ontario

Citation: R. v. White, 2010 ONCA 474

Date: 20100630

Docket: C51378

Between:

Her Majesty The Queen

Respondent

And

John Robert White

Appellant

Before: Rosenberg, Blair and Juriansz JJ.A.

Counsel:

James Lockyer, Joanne McLean, Craig Flood and Sean Carrie, for the appellant

Jennifer Woollcombe, for the respondent

Heard and released orally: June 30, 2010

On appeal from conviction by Justice Bernstein of the Ontario Court of Justice (General Division), sitting with a jury, entered March 28, 1995.

ENDORSEMENT

[1] In 1995, the appellant was convicted of sexual assault based on an allegation that he assaulted a resident at the Huronia Regional Centre. Since his conviction the appellant has pursued various avenues in an attempt to overturn the finding of guilt. Those attempts have included an unsuccessful appeal to this court in 1996, a successful result at an arbitration hearing that was later quashed by the courts, an application for ministerial review and finally an appeal to the Supreme Court of Canada. On December 3, 2009, the Supreme Court of Canada allowed the appeal and remanded the case to this court. The issues before us are the admissibility of fresh evidence and whether that evidence, if admitted, establishes that there was a miscarriage of justice at the original trial.

[2] We agree with Crown counsel that the test for fresh evidence has been met and that the appeal must be allowed. The Crown’s case in 1995 depended upon the evidence of Daniel Wither, another employee at the Centre. Four years after the alleged assault, he claimed that he saw the appellant sexually assault a severely developmentally-delayed resident. The alleged assault and accompanying lewd remarks were completely out of character for the appellant, who was described at sentencing as a caring and dedicated employee.

[3] The appellant’s 1995 trial was a brief one. Defence counsel did not call the appellant nor adduce any defence evidence. Substantial material that could have undermined the credibility of Mr. Wither was available to the defence, and actually in counsel’s file, but was not used by the appellant’s trial counsel. We note in particular that there was substantial evidence available to the defence showing that Mr. Wither had a motive to falsely implicate the appellant and that Mr. Wither was in breach of a directive, that he would have known about, to immediately report incidents of sexual abuse.

[4] We agree with Crown counsel that while not all of the proposed evidence meets the test for fresh evidence, there is a substantial body of admissible fresh evidence showing that the appellant did not receive effective assistance of counsel. We refer in particular to the material concerning the so-called Herring Report that could have demonstrated Wither’s motive to lie and the material that could have undermined Wither’s explanation for his failure to report the alleged assault at the time. These materials were either actually available to trial counsel or could easily have been obtained. The failure to use the materials in cross-examination of Wither and as part of a defence case demonstrates ineffective assistance of counsel, even granting the strong presumption that counsel’s conduct falls within the wide range of reasonable and professional assistance.

[5] We are also satisfied that failing to use the evidence resulted in a miscarriage of justice. The appellant has demonstrated that the verdict is unreliable since if counsel had performed in a competent fashion, there is a reasonable possibility that the verdict could have been different. The Crown’s case depended upon Mr. Wither’s testimony. The fresh evidence, used effectively, could have so undermined his credibility as to leave the jury with a reasonable doubt that the alleged assault ever occurred.

[6] Accordingly, the fresh evidence is admitted, the appeal is allowed, the conviction quashed and a new trial ordered.

[7] We wish to thank Ms. Woolcombe for the Crown/respondent and Mr. Lockyer, Ms. McLean, Mr. Flood and Mr. Carrie for their assistance with this matter.

Signed: "M. Rosenberg J.A."

"R. A. Blair J.A."

"R. G. Juriansz J.A."