R. v. Weaver, 2010 ONCA 668

CITATION: R. v. Weaver, 2010 ONCA 668

DATE: 20101012

DOCKET: C49791

COURT OF APPEAL FOR ONTARIO

Goudge, Sharpe and MacFarland JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Colin Weaver

Appellant

Counsel:

Brian Snell, for the appellant

Gregory J. Tweney, for the respondent

Heard: September 29, 2010

On appeal from the conviction entered on December 15, 2006, and the sentence imposed on March 1, 2007, by Justice Kenneth E. Pedlar of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

By The Court:

[1] The appellant argues that the trial judge erred in admitting and relying on the videotaped statement of Mr. Boivin and secondly that the trial judge gave the appearance of bias by prejudging Mr. Boivin’s veracity in his ruling on that issue.

[2] In our view, the trial judge did not err in admitting and relying on the Boivin the statement. The statement was videotaped. It was given after the administration of the oath and after the police emphasized to Mr. Boivin the importance of telling the truth in sworn testimony and consequences of not doing so. The fact that the trial judge in his later assessment of Mr. Boivin’s truthfulness disbelieved some of his trial evidence does not negate the presence of the oath as a factor adding to the reliability of the statement to some extent.

[3] While there was the opportunity to cross-examine Mr. Boivin at trial on the statement, it was limited by his testimony the he could not remember giving the critical parts of the statement. Nonetheless, there was some limited chance to cross-examine which also helps with the reliability assessment although less so than a full opportunity to cross-examine.

[4] Finally, the trial judge found in the broader circumstances considerable uncontroverted evidence confirming the reliability of much of Mr. Boivin’s statement.

[5] The trial judge properly reviewed and weighed all these indicia of reliability and concluded that the statement should be admitted, and he subsequently accepted the truthfulness of that portion relating to the appellant. There was nothing unreasonable in these conclusions and we would not interfere with them.

[6] We also disagree that the trial judge created a reasonable apprehension of bias. We do not view his comment in admitting the Boivin statement as being a finding about Mr. Boivin’s truthfulness. It was merely a comment about Mr. Boivin’s reluctance to be a witness at all. This was confirmed when, immediately after the ruling, in disposing of the mistrial application, the trial judge made clear that he was not making any finding about Mr. Boivin’s veracity. A reasonable person fully informed about these circumstances would not reasonably apprehend that the trial judge had prejudged Mr. Boivin’s veracity.

[7] Both the appellant’s arguments must fail.

[8] The appeal is dismissed.

RELEASED: OCT 12 2010 (“S.T.G.”)

“S. T. Goudge J.A.”

“Robert J. Sharpe J.A.”

“MacFarland J.A.”