Court File and Parties
CITATION: R. v. Gowan, 2011 ONCA 600
DATE: 20110920
DOCKET: C52646
COURT OF APPEAL FOR ONTARIO
Rosenberg, MacPherson and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Michael J. Gowan
Appellant
Counsel:
Mark Ertel, for the appellant
Kim Crosbie, for the respondent
Heard: September 9, 2011
On appeal from the conviction entered on July 19, 2010 by Justice Dianne M. Nicholas of the Ontario Court of Justice.
ENDORSEMENT
[1] Michael Gowan appeals his conviction for the offence of mischief over $5,000. The circumstances involved damage to property in which a company he owned had performed plumbing services. He raises two main issues:
Concerning Mr. Gowan’s alibi defence, the trial judge’s reasons are insufficient.
The trial judge erred in her application of the test set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
[2] With respect to the first point, Mr. Gowan submits that the trial judge erred in failing to explain how she dealt with the evidence upon which he relied to establish that he was not at the property when the crime was committed. This evidence falls into two categories – first, evidence that relates to whether it was physically possible for Mr. Gowan to be at the property at the time it was damaged, and second, testimony of two witnesses that he was not, in fact, at the property at that time.
[3] We do not accept this submission. The trial judge’s reasons demonstrate how she concluded that it was possible for Mr. Gowan to have made the calls he apparently made from his cottage at the time they were made, and be at the property when the crime was committed. The reasons also set out the basis for her conclusion that the testimony of the two witnesses who stated that Mr. Gowan was not at the property at the relevant time, was not credible. These conclusions, together with the trial judge’s acceptance of the evidence of the two witnesses who placed Mr. Gowan at the scene of the crime– witnesses whose testimony the trial judge accepted– demonstrate how she arrived at her verdict.
[4] With respect to the second point, Mr. Gowan submits that the trial judge’s comment that Pat Gowan’s evidence did not alter her view of the appellant’s credibility, shows that she failed to consider whether Pat Gowan’s evidence that his father was not at the property when the damage took place, raised a reasonable doubt. The foundation of this submission is that the trial judge did not apply the second of the three essential steps set out in R. v. W.(D.).
[5] Again, we do not agree. The critical question is whether the trial judge directed her mind to the issue of whether the defence evidence, considered in the context of the record as a whole, raised a reasonable doubt. This, she did. She acknowledged the R. v. W.(D.) principles, as clarified by the Crown. She then considered the defence evidence and concluded that it raised no reasonable doubt.
[6] While counsel for Mr. Gowan on appeal did not press this point in oral argument, in his factum he argues that the trial judge erred in relying on inadmissible evidence, namely, the photo line-up.
[7] In our view, the trial judge did not err in her approach to this evidence. Given the wording she used in referring to this evidence, it is clear that she placed little, if any, weight on it. Even if she attached some significance to the photo line-up evidence, we agree with the Crown that any minor amount of unwarranted weight would not have affected the result.
[8] There was ample evidence found to be credible by the trial judge that is not in dispute in this appeal. That evidence sufficiently supports the trial judge’s conclusion that the Crown had proven the case against Mr. Gowan beyond a reasonable doubt.
[9] Accordingly, the appeal is dismissed.
“M. Rosenberg J.A.”
“J.C. MacPherson J.A.”
“Gloria Epstein J.A.”